Apr 7, 2025
Custody rights under the Children's Act – rights of children and parents
Right of access is a fundamental right for both children and parents when the parents do not live together. The Children Act is based on the principle that it is valuable for children to have contact with both parents, and the right of access is designed to maintain this important relationship. The article reviews the main rules, scope, and challenges related to the right of access.
A right for the child and for the parents
Both the UN Convention on the Rights of the Child and the Children Act are based on the view that contact between children and parents is important and valuable. The Children Act establishes that the child has the right to contact with both parents, even if they live separately, and the parents have a mutual responsibility to fulfill the right of access.
The parent who does not live with the child has a statutory right to contact with the child unless something else is agreed or established. The law also states that the child is entitled to care and consideration from the person they are with during the contact.
The child's right, however, is of a different nature than the parents'. The child is not a party to any potential conflict over access and cannot take legal action to have the access changed or enforced. Children, however, have a right to be heard on issues related to contact.
The scope of the right of access
Neither the Children Act nor the UN Convention on the Rights of the Child specifies precisely how extensive the contact should be. The parents can agree on the extent of contact based on what they believe is best for the child. If they cannot agree, the issue can be taken to court, which will then decide the question based on what is best for the child.
When deciding the scope of contact, emphasis should be placed on:
Consideration for the best possible overall parental contact
The child's age
The child's connection to the local environment
The travel distance between the parents
The welfare of the child otherwise
The Children Act defines "ordinary access" as one afternoon a week with overnight stay, every other weekend, a total of three weeks in the summer holiday, and every other autumn, Christmas, winter, and Easter holiday. This definition, however, is only indicative, and the parents are free to agree on an arrangement that better suits their family.
The Supreme Court has expressly stated that ordinary access is not the legal starting point. The assessment should primarily focus on what is best for the child in the individual case.
Limitations on contact
In some cases, it may be necessary to limit contact. If contact is not in the best interest of the child, contact must be denied. This is particularly relevant in situations where:
The child may be at risk of violence or abuse
There is a high level of conflict between the parents
The contact is very distressing for the child
There is a risk of abduction
The court can also set conditions for contact, for example, that it must take place under the supervision of a third person. With a legal amendment, the court has been given the authority to require the child welfare service or the ministry to appoint a supervisor. A distinction is made between "protected supervision" and "supported supervision", where the former involves protection of the child during contact, while the latter involves support and guidance.
A person who is subject to a contact ban under the Penal Code or the Criminal Procedure Act cannot have contact with the child unless the contact or visitation ban allows it.
In cases where the child lives at a confidential address with a parent, the Supreme Court has stated that a decision for a confidential address does not automatically exclude contact, but it will require a significant reason for contact to be considered in the best interest of the child in such a situation.
Conduct of contact
Collection, delivery, and travel expenses
If the parents have not agreed otherwise, it is the parent with access who is responsible for collecting and delivering the child. The resident parent can also be required to participate in the arrangement if this is a condition for the contact to be carried out.
Travel expenses related to contact should generally be shared between the parents based on their income. If special reasons make it reasonable, the court can determine a different sharing arrangement. The costs to be shared include the child's travel, the necessary expenses the parents have to collect or deliver the child, and the access parent's own travel when the contact is to take place where the child lives.
Notification duty on moving
An important rule is that if one of the parents intends to move, and contact is agreed or established, that parent is obliged to notify the other at least three months before the move is to take place. In addition, a duty to mediate is introduced if the parents do not agree on the move.
A breach of the notification duty can have implications during the legal consideration of the child's place of residence, although this alone cannot have consequences contrary to what is best for the child. The Supreme Court has stated that failure to notify can be considered as one of several factors in the assessment of what is best for the child.
Right of access for others than the parents
The right of access primarily applies between children and parents, but the Children Act also has rules regarding contact for others in certain situations:
When one or both parents are deceased, the child's relatives or others closely related to the child can request the court to establish whether they should have access.
When one of the parents is denied access, that parent can demand the court to decide whether his or her parents (i.e., the child's grandparents) should have access.
The Supreme Court has also, in special cases, established access between a child and a person who is not the child's biological parent, based on the right to respect for family life according to Article 8 of the European Convention on Human Rights.
Problems with conducting the access
Contact does not always proceed smoothly. Two main problem areas are when the resident parent hinders the contact and when the parent with access fails to show up for contact.
In the case of lack of contact due to hindrances from the resident parent, there are rules regarding enforcement. It is possible to set a standing fine that accumulates with a new amount each time the right of access is obstructed. Interference with contact can also lead to a reconsideration of where the child should reside.
If the parent with access does not show up for contact, there are no direct sanction options. The adult does not have a legal obligation to exercise the contact that matches the child's right of access. However, the extent of contact does have an impact on the calculation of child support, and those with little contact must pay more support.
Summary
The right of access is an important right designed to ensure that children maintain contact with both their parents when they do not live together. The law and case law assume that this is generally in the best interest of the child, but that limitations can and should be set where the best interest of the child dictates it. The central consideration for all decisions about access is what is best for the individual child in the specific situation.
