Child contact – rules for determining and changing

Definition of parent/child contacts

The household and caring code in Article 113(2) defines the concept of maintaining contact with a kid by setting examples of their elements. Therefore, contacts mean:

• being with a child,
• visits,
• meetings outside the child's permanent residence,
• direct communication,
• telephone contacts,
• communication from another means of communication at a distance – including electronic communication.

The listed directory of contact elements with the kid is open, but contains the most crucial components of contact with the kid and should facilitate the formulation of judicial decisions concerning this substance (so: H. Warm, household and Care Codes. Commentary, K. Piasecki (ed.), Warsaw 2011, p. 825).

Right of parent to information about child

In addition to the catalogue of forms of contact with the kid provided for in Article 113(2), the right of the individual entitled to information about the another individual may be indicated. The concept of contact so includes the work to inform the entitled individual about the kid and the kid (yes: Marek Safian (ed.), Council of Europe legal standards. Texts and comments, W. 1995)

Contacts with your kid by telephone and email

The Convention on kid Contact drawn up in Strasbourg on 15 May 2003 sets out the concept of kid contact in broad terms. It includes not only individual contact – including outside the child's place of residence – but besides telephone contact and e-mail, which does not replace, but complements direct contact and can only replace it in exceptional, justified cases.

The exercise of the right to communicate at a distance will affect the work of the parent whose kid is permanently present to send correspondence, to supply the kid with a computer, telephone, and to supply the appropriate email address and telephone number (yes: J. Ignaczewski, household and Care Code). Commentary, p. 650).

Contacts with the kid via the net utilizing the camera

As indicated by the ultimate Court in its resolution of 8 March 2006, act No III CZP 98/05, OSN 2006, No. 10, item 158, an open catalogue of forms of contact with a kid contained in Article 113 kro, was adapted to the provisions of the Convention concerning contacts with children, utilizing the concept of contacts in broad terms.

Long-distance indirect contacts can so take the form of audiovisual conversations via the net utilizing a camera. In the event of a decision on contacts in this form, the court should besides regulation on the work to get or accept the essential equipment from the another parent, unless it has been in its possession so far.

There is no uncertainty that this form of contact is much more beneficial to the kid than a simple telephone conversation, due to the fact that the kid seeing the parent on the computer screen maintains more intense emotional contact (so: T. Sokołowski [in:] household and protective code. Commentary, H. Dolecki, T. Sokołowski (ed.) LEX, Warsaw 2013, pp. 804-805)

Also adopted on 3 May 2002 by the Committee of Ministers of the Council of Europe, the Convention on contacts with children, signed by Poland on 24 September 2003, sets out the concept of contacts in broad terms. It includes not only individual contact – including outside the child's place of residence – but besides telephone contact and e-mail, which does not replace, but complements direct contact and can only replace it in exceptional, justified cases. This concept besides includes the work to inform the rightholder about the kid and the kid (yes: Safjan M. (ed.), Council of Europe legal standards. Texts and comments, W. 1995; , Commentary to advice No R(84)4 (in:) M. S. (ed.), Legal Standards..., p. 213 and n.).

The interference of the court inChild contact

Pursuant to Article 113(1), the general regulation is that if a kid is permanently present with 1 of the parents, the way in which the kid is contacted by the another parent shall find jointly, in the interests of the kid and taking into account his reasonable wishes. *

It is only erstwhile parents are incapable to scope an agreement, or erstwhile the child’s welfare is at risk, that the case is decided by the guardian court. This provision so takes account of social practice, as parents are frequently able to scope a compromise without unnecessary conflicts, which should be a rule.

According to the wording of Article 58, in the judgement ruling on the divorce, the court decides, inter alia, on parental authority the joint insignificant kid of both spouses and parental contacts with the child, the court taking into account the written agreement of the spouses on how to exercise parental authority and keep contact with the kid after divorceif it is compatible with the welfare of the kid (§ 1).

In the absence of this agreement, the court, having respect to the right of the kid to be raised by both parents, shall decide on the way in which the parental authority is to be exercised jointly and to keep contact with the kid after divorce (§ 1a). On the another hand, the court does not, at the consent of the parties, decide to keep contact with the kid (§ 1b).

In turn Article 107 cro contained in Chapter II (Relative relations between parents and children) Division 2 (Parent Authority) of the household and Care Code, which treats parents surviving in separation uniformly, irrespective of the existence or non-existence between them at the time of the ruling or in the past of the marriage, provides that if the parental authority is entitled to both parents surviving in the separation, the guardian's court may, for the sake of the child's welfare, find how it is exercised and maintaining contact with the child (§1) However, the court shall leave the parental authority to both parents if they have presented a written agreement, in accordance with the child's welfare, on how to exercise parental power and keep contact with the child.

In the absence of agreement, the court, having respect to the right of the kid to be raised by both parents, shall decide on the way in which the parental authority is to be exercised jointly and to keep contact with the kid (§ 2). At the consent of the parties, the court shall not decide to keep contact with the kid (§ 3).

The comparative summary of Articles 58 and 107 kr shows that, where Article 107 applies, a written agreement on how to exercise parental power and to keep contact with a kid is required only if both parents are left alone.

The guardian's court may then modify the decision on contacts if the child's welfare so requires (Art. 113 5 kr).

Child welfare in establishing contacts

As stressed by the ultimate Court in its judgement of 8 June 2000, the mention to act V CKN 1237/00, not publ., citing Article 3 Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989 and ratified by Poland on 7 June 1991, in all actions concerning children undertaken by courts, among others, should be guided by the interest of the kid as a superior value.

The Convention so lays down an absolute legal work and refers to any individual decision to apply the law by the court, both in the application of the rules of procedure and in the explanation of substantive law rules which supply a substantive justification for decisions concerning children.

A akin position was taken by the ultimate Court in its judgement of 25 August 1981, Case No. III CRN 155/81, (unpubl) and Case No. II CKN 765/00, LEX No. 51981, stating that the court should be primarily guided by the welfare of the child, alternatively than by the interests of 1 or both parents, erstwhile deciding to contact the child.

Parental Authority and kid Relations

The amendment of Article 113 kro of 6 November 2008 resolved explicitly the doubts in its erstwhile wording as to whether the right to individual contacts between each parent and kid falls within the concept of parental authority by explicitly stating that they are independent of parental authority.

There is presently no basis for building the view previously expressed in doctrine (although remaining in minority) and in the resolution of 7 ultimate Court judges of 8 March 2006, III CZP 98/05, OSNC 2006, 4 no. 10 158) that during the duration of parental power there is no separate right to individual contact.

Parental authority is so a separate issue from kid contact*.

The change in parental power is to reduce its scope compared to that provided for in Articles 95(1) and 98(1). It follows from these provisions that parental authority includes the work and right of parents to exercise care over the individual and property of the kid and the exercise of the powers and duties of his legal representative. The right to contact with a kid is, on the another hand, a separate concept (yes: ultimate Court resolution of 28 November 2012, act III CZP 74/12).

Amendment of the order of contact with the kid by the court

In accordance with Article 113 5 k.r.o. A guardian's court may change the decision on contact if the child's welfare so requires. Judgments given by the court concerning contact with the child, i.e. both on the basis of:

• 113 2 kr – limitation of parental contact with the kid if the child’s welfare and
• 113 3 kr – a ban on parents’ contacts with the kid by the court if their maintenance threatens or violates the welfare of the kid and
• 58 § 1 cro – the decision in the divorce judgement on the parents' relation with the child,
• 107 §2 cro – the court’s decision on how to keep contact with the kid in the absence of agreement between parents on how to keep contact with the child

– can be changed by the court.

The determining importance in this case is in the interests of the child. This change may affect exacerbating the means of interference and mitigating them. If, for example, the court finds that the limitation of contact with the kid does not give emergence to the desired effects, for the sake of the child's welfare, then it will prohibit their maintenance if the conditions for specified a prohibition are met.

There may besides be a different situation. For example, the court will find that there are no grounds for continuing the prohibition of contact. In specified a case, the court may revoke this prohibition, at the same time indicating, if essential for the sake of the child, what is the limitation of contacts. This regulation may subsequently be abolished (yes: Łowicz territory Court in judgement of 28 June 2018, No. III Nsm 143/18).

A Child’s Aversion to gathering a Parent

The enforcement of a court ruling concerning contact with a kid in the course of a child's custody procedure sometimes involves the request for the direct impact of the measurement on the child, which exposes them to negative intellectual experiences associated with specified a form of enforcement of a judicial decision. Therefore, the enforcement measures provided for in the kid care procedure do not sometimes service to establish a appropriate relation between the kid and the individual entitled to contact the child.

The enforcement of the judgement of the court by means of the measures provided for in Article 598 6 et seq., although formally justified, may so interfere with the child's welfare, and the application of those provisions should so be limited to cases clearly indicated, i.e. where the enforcement of the decision involves the request to take the kid away.

However, the request to take account of the child’s position in judicial proceedings concerning his or her individual indicates both Article 12 of the global Agreement of 20 November 1989. The Convention on the Rights of the Child, as well as Article 216 1 kpc, which states that a court in matters relating to a insignificant of a kid will hear it if its intellectual development, wellness position and degree of maturity so permits (§ 1) and, as the case may be, the intellectual development, wellness position and degree of maturity of the kid will take into account its opinion and reasonable wishes (§ 2), and judicial caselaw (yes: judgement of the Court of Appeal of Białystok of 7 June 2018, Act mention I ACa 138/18).

Child contact and deficiency of parental power

The ultimate Court in its resolution of 26 September 1983, the ref. Act III CZP 46/83 (OSNCP 1984, No. 4, item 49), stated that the failure to grant parental authority to the father in a judgement determining paternity does not exclude his right to individual contact with the child.

The sphere of individual contact with the kid remains outside the parental authority and has no effect on the depletion of its scope (yes: ultimate Court resolution of 21 October 2005, Act III CZP 75/05, OSNC 2006, No 9, item 142 and the order of the ultimate Court of 5 May 2000, act No. II CKN 761/00, ‘Court Review’ 2001, No. 9, p. 122 and 7 November 2000, Act mention I CKN 1115/00, OSNC 2001, No. 3, item 50).

If the father does not have an established prohibition of contact with the child, he shall have the right to request the change of the established rules of contact with the kid pursuant to Article 113 5 kro (yes: Łowicz territory Court in judgement of 28 June 2018, act No. III Nsm 143/18).

Obstruction by a parent

According to the wording of Article 598 15 § l k.c., introduced by the Amending Act of 26 May 2011 amending the Act – Code of civilian Procedure (Journal of Laws 2011 No. 144, No. 854), if the individual under whose custody the kid remains does not exercise or improperly execute obligations arising from a judgement or from a settlement concluded before a court or before a mediator on contacts with a child, the guardian court, having respect to the individual situation of that person, threatens to order him to pay the individual entitled to contact the kid with a cash sum for any breach of the obligation.

A akin sanction shall be applied to the individual entitled to contact the kid or to whom the contact has been prohibited. If specified a individual violates the obligations arising from a judgement or from a settlement concluded before a court or mediator in relation to contacts with a child, the guardian court shall endanger to order him to pay the sum of money to the individual under whose custody the kid remains.

Limiting the maintenance of parental contacts with the child

Pursuant to Article 113 2 kro, if the child's welfare so requires, the welfare court shall restrict the maintenance of parental contacts with the kid (§ 1).

The welfare court may in particular:

• prohibit the date of the child;
• prohibit the kid from being taken outside his permanent residence;
• permit the kid to meet only in the presence of another parent or guardian, probation officer or another individual designated by the court;
• limit contacts to circumstantial means of communication at a distance;
• prohibit communication at a distance.

Making contact with a kid in the presence of a individual who cares for him

A decision establishing contact with a kid should take into account the welfare of the kid and so it is possible to decide whether to contact the kid in the presence of the individual concerned. This form of contact with a kid may be due to the age of the child, to his or her wellness or to certain, shaped, strong emotional relationships between the kid and the individual concerned, and between the kid and the contact person.

If you are in contact with a child, you will feel safe and stable. The intent of the decision determining the relation with the kid is to search to keep or rebuild the appropriate emotional ties between the kid and the individual entitled to those contacts as a condition for the appropriate improvement of the psychophysical kid (yes: ultimate Court resolution of 18 March 2011), Act III CZP 139/10).

Child contact with grandparents and another household members

Pursuant to Article 113 6, the provisions on the right and work to keep in contact with parents with children, their forms, restrictions and prohibitions shall apply mutatis mutandis to the relation of children with siblings, grandparents, relatives in a consecutive line, as well as another persons, if they have been in charge of the kid for a long time.

Regulation of the right to contact with a kid by non-parents and the issue of parental authority

Parents exercise their kid care on an exclusive basis. The exercise of a close right of contact with a kid is the exercise of their own right, not the effect of a "transfer" of care over the kid to their benefit. The parental authority is indivisible.

Granting the right to contact with a kid does not modify parental power. The court does not thus restrict parental power or the right of parents to individual contact with the kid (yes: ultimate Court in its resolution of 28 November 2012, act No. III CZP 74/12).

The ultimate Court noted that a discrimination should be made between limitation of parental power from the actual limitation of parental power which is the consequence of the court's regulation of contacts pursuant to Article 113 6 of the Code, as in doctrine, the content of parental power is distinguished from its exercise.

Transnational dimension of the right to contact a child

The right to contact a parent with a child, outside the household and Care Code, besides provides for a number of global acts.

Recommendation of the Committee of Ministers of the Council of Europe on Parental Authority of 28 February 1984

The issue of individual contact between parents and children has been addressed in European legal standards. regulation 6 of advice No R (84) on Parental Authority of 28 February 1984 (accepted by the Committee of Ministers of the Council of Europe) provides the parent of the child's unborn kid with the right to keep individual contact with him, but where these contacts seriously harm the interests of the child.

Convention on kid Contacts in Strasbourg on 15 May 2003

Ratified by Poland on 23 April 2009, Convention on the Contact with Children drawn up in Strasbourg on 15 May 2003, lays down the general rules applicable to the issue of decisions relating to contact with the child, and lays down adequate safeguards and guarantees to guarantee that specified contact is decently effected and that the children return immediately after the period of contact.

The Convention assumes that ‘contact’ means:

• the stay of the kid for a certain period of time, or his gathering with the parent, a associate of the immediate family, or another entitled individual with whom the kid is not permanently living;
• any form of communication between the kid and specified person;
• providing the rightful individual with information about the kid or the kid about that person.

In turn, close relationships, specified as between a kid and his grandparents or siblings, arising from the power of law or from a relation which is de facto family-specific, are considered “family-related.

Principles of parental and kid contact under the Convention on kid Contact

The kid and the parents have the right to have regular contacts. The limitation or exclusion of specified contacts is only possible if essential for the benefit of the kid (Article 4 – Child-parent contact).

When maintaining unsupervised contact with 1 of his parents is not compatible with the welfare of the child, consideration should be given to the anticipation of utilizing supervised individual contact or another forms of contact with that parent (Article 4(3)).

In accordance with the child's welfare, contacts may be established between a kid and persons another than his parents having a household relation with the kid (Article 5(1)).

Obligations of judicial authorities to decide on parental and kid contact under the Convention

Pursuant to Article 7 of the Convention on the Contact with Children, the judicial authority should take appropriate measures in resolving contact disputes:

• to guarantee that both parents are aware of the importance for their kid and each of them, to establish and keep regular contacts with their child;
• to encourage parents and another persons having a household relation with a kid to enter into amicable contact arrangements, in peculiar through mediation or another dispute resolution measures;
• to guarantee that, before taking a decision, adequate information is available, in peculiar from persons who have parental responsibility, to take a decision in accordance with the child's welfare and, where necessary, to get further information from another applicable sources or from another applicable persons.

Security of contacts with the kid by the Court of First Instance

In any civilian case to be examined by a court or arbitration court, a safety may be requested (Art. 730 §1 kpc). The Court may so regulate the way in which custody of minors and contacts with children is to be established (Article 755(1)(4) kpc). The court shall supply the safety in specified a way as it deems appropriate under the circumstances, without excluding the means provided for the protection of monetary claims.

However, it should be pointed out that, in the case of the arrangement of contacts, the function of the court is subsidiary, that is to say, it only settles the contacts if the parents and the rights cannot agree (Article 113(1) and Article 113(6)). The decision on the contacts shall not be invariable, since, as provided for in Article 113 5 kro, the guardian court may alter the decision on the contact if the child's welfare so requires. Thus, the condition governing the decision governing the contact is the best interests of the child; this condition is besides decisive in deciding whether to safe a claim for contact with the child, under the procedure provided for in Article 755(1)(4)(kpc). In this respect, the ambition of the parties to proceedings and their conflicts are irrelevant.

In accordance with Article 756 1 of the Code, in cases relating to the care of minors and contacts with children, the court shall decide on the safety after the proceeding (unless there is an emergency). Yes, so erstwhile issuing a decision to safe the claim, the court is guided not only by claims of the application but besides by evidence collected during the course of the court's proceedings. (yes: decision of the Wieliczka territory Court of 22 September 2017, Act IV Nsm 602/17).

the ultimate Court in its resolution of 8 March 2006, Act III CZP 98/05 stated that the provision of Article 113(1) k.r.o. does not exclude the granting under Article 755(1) k.p.c. of a safety by prohibiting parents who are not deprived of parental power from having individual contact with a child.

Enforcement of contacts with the kid – nature of the institution

The regulation concerning the exercise of contacts with a kid is contained in the provisions of Articles 598 15 to 598 21 of the Code of civilian Procedure, which were added to the Code of civilian Procedure with the date of entry into force of the Act of 26 May 2011 amending the Act – Code of civilian Procedure (Journal of Laws No. 144, item 854) and placed in Part 1 in the Second Book in Title II in Chapter 2 of the Code, branch 6 named "Cases concerning contacts with a child".

The most fresh case law of the ultimate Court states that, as a consequence of these provisions being placed in a non-trial procedure, after a branch 5 standardising the procedure for the removal of a parent or dependant person, the proceedings concerning the conduct of contacts with a kid have lost its enforceability and become one of the care procedures; it is simply a sui generis exploratory procedure limited to the implementing phase (yes: justification for the ultimate Court resolution of 22 May 2013 III CZP 25/13).

In the literature of the subject, it was emphasized that by introducing the above regulation, the legislator in fact reversed the order of recipitating a legal measurement modeled on the French model astreinte into the Polish strategy of civilian proceedings, introducing it first to a non-trial procedure, not to an enforcement procedure, thus making it a typical enforcement measurement an implementing measurement in the care procedure (so: Michał Krakowiak, Commanding the payment of the monetary sum in the fresh procedure for making contacts with the child, Transformation of Private Law 3/2013).

Procedure for the execution of contacts with the child

If the individual under whose custody the kid remains does not perform, or improperly performs, the obligations arising from a judgement or from a settlement concluded before a court or before a mediator concerning contacts with a child, the guardian's court shall, taking into account the property situation of that person, endanger to order him or her to pay the individual entitled to contact the kid with a sum of money for each infringement (Article 598 15 § 1 kpc).

Similarly, if person entitled to contact the child either the individual to whom the contact has been prohibited infringes the obligations arising from the judgement or from the settlement concluded before the court or before the mediator in relation to contacts with the child, the guardian court shall endanger that individual with orders to pay the sum of money to the individual under whose custody the kid remains (§ 2).

There is simply a complaint against the above provisions of the court (§ 3).

Thus, in the proceedings relating to the making of contacts with a child, the court shall first issue a decision to order the individual afraid to pay the sum of money in accordance with Article 598 15 §2 kpc.

Subsequently, in accordance with Article 598 16(1)(c), where a individual whose custody court has threatened to order the payment of a marked sum does not proceed to fulfil his obligation, the guardian's court shall order him to pay the sum due, setting its amount according to the number of infringements.

In cases relating to the exercise of contacts with a child, the guardian's court shall decide only upon applicationThis concerns both the order to order the payment of the monetary sum and the order to pay it (Article 598 18(1) kpc). The Court of First Instance shall decide on a case-by-case basis (Article 47(1) kpc in Article 13(2) kpc and Article 509 kpc). Before issuing each order, the court shall be obliged to hear the participants of the proceedings (Article 598 18 §2 kpc).

In the light of the above, it should be noted that the procedure for dealing with a child, both in the exploratory sphere as well as the executive Article 598 15 et seq. of the Rules on Non-Processed Proceedings are pending before a guardian's court, acting as 1 of the proceedings in matters relating to family, care and guardian's law, which is further initiated on application.

Punishment for a parent and the child's deficiency of contact

As mentioned, in cases where a parent makes it hard for a second parent to have a relation with a child, it is possible for a guardian court to impose an work on the individual under whose custody the kid is located to pay the sum of money to the individual entitled to contact the child.

However, Constitutional Tribunal in judgement of 22 June 2022. Ref. act SK 3/20 He ruled that Article 598 16 § 1 in conjunction with Article 598 15 § 1 kpc, in so far as they cover situations in which the improper performance or non-execution of duties is related to the conduct of a kid not invoked by the individual under whose care the kid is situated, is incompatible with the second conviction of Article 48(1) and Article 72(3) of the Constitution of the Republic of Poland.

This Constitutional Court ruling has the effect that household courts in practice cannot impose on a parent who has permanent custody of a kid of a circumstantial financial punishment erstwhile the kid refuses to contact another parent for reasons not related to the action of the parent with whom he is permanently resident.* A child's decision cannot be caused by alleged rebellion.

Procedure for making contact with a kid and the feasibility clause

The Court of First Instance dismisses the application for a declaration of enforceability in the context of a clause procedure to the final decision governing the exercise of contacts with the children of the parties, since the order on this subject is not a provision suitable for enforcement by judicial execution (yes: the order of the Court of Appeal in Krakow of 9 October 2014, Act mention I AC 1723/14).