The state of emergency has been declared, the schools will remain closed for an indefinite period of time, nothing continues “as usual”. What does this imply for separated parents?
March 27th, 2020
The state of emergency was declared by a grand-ducal regulation dated March 18th, 2020 and limits any movement outside of home. What about separated parents? Are visitation rights and alternate residence exercised as usual?
It is important to differentiate between parental authority and the residence of common children or possible visiting and accommodation rights, the legal rules of which are codified by the law of 27 June 2018 establishing the judge for family affairs, reforming divorce and parental authority.
Parental authority is the set of rights and obligations with regard to the person of a minor, which belongs to each of the child’s parents and which last until majority of the child or his emancipation. The majority is fixed at the age of 18 in the Grand Duchy of Luxembourg.
The principle is that parental authority is joint, that is to say that it is exercised in common. The parents of the child have the same rights and obligations towards their child, whether they live together or are separated or divorced. The separation or divorce of the parents does not change the conditions for the exercise of parental authority, which continues to be exercised jointly by the two parents in principle.
The exercise of parental authority is in no way affected by the current state of emergency or any other government measure taken in the context of the extraordinary situation caused by COVID-19.
Alternate residence or visitation and accommodation rights
However, when the parents have separate residences, sometimes beyond the borders of the Grand Duchy, the numerous declarations made in regard to the state of emergency and the ban on any movement outside of home can be confusing.
It should be recalled that, in the event of separation, the parents can agree on the residence of the common children, alternated or not, as well as the visitation and accommodation rights possibly granted to one or the other parent.
If no agreement between parents is possible, the judge will then have made a decision in the best interests of the child and have fixed the child’s home with one of the parents. It is then possible that the residence is either alternate, or that one parent receives visitation and accommodation rights. It is important to note that alternate residence does not necessarily impose a strictly equal sharing of the child’s residence time at the home of each parent.
Following the instructions received by the Judge on Family Affairs of the Luxembourg District Court on Friday, March 20th, 2020, parents living separately with one or more common children with shared custody or residence are asked to strictly limit the movement of children.
Thus, the Judge on Family Affairs considers that it is unwise to maintain the repetitive access rights agreed or judicially decided. We must, while keeping the best interests of the child at the center of all decisions, above all seek to minimize the passing of arms over the coming weeks. This means that it is quite possible to maintain four weeks with only one of the two parents, by encouraging Facetime or Skype contacts for example. The Judge on Family Affairs encourages parents to find an agreement that limits the child’s movement as much as possible, in the awareness that custody of a child in the current context is far from being an easy task.
If the parents cannot find a suitable solution, the child must stay with the parent with whom the usual residence is located. The other parent will then be “compensated” once a return to normality is possible.
If the parents exercise alternate residence, it is now to be exercised in blocks of two weeks.
Any surrender of the child beyond the borders of Luxembourg is to be assessed individually and to be considered with great reservations. The Judge on Family Affairs considers that the return of the child is not guaranteed and advises separated parents to suspend all transportation of the child beyond the borders until the crisis settles down.
In addition, it follows from the instructions of the Luxembourg government but also from the opinion of the Judge on Family Affairs that all visits to a public place or in the presence of a third party are imperatively suspended.
The grand-ducal regulation of March 18th, 2020, as modified by the grand-ducal regulation of March 20th, 2020 maintains that any travel necessary for the exercise of visitation and accommodation rights as well as the exercise of alternate residence arrangements, as agreed upon between the parties or by court order, is permitted.
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This article is a reflection of the opinion issued by the Judge on Family Affairs of the Luxembourg District Court on Friday, March 20th, 2020, as well as the information published by the Ministry of Justice of the Grand Duchy of Luxembourg.