Parental Responsibility – Rules for Married, Cohabitating, and Unmarried Couples under the Norwegian Children Act

The Children Act contains clear rules about who has parental responsibility for a child, with different starting points based on the parents' marital status. The law also allows significant contractual freedom in many situations.

Married Parents

For married parents, the main rule is simple: They share parental responsibility for their common children, see the Children Act § 34 first paragraph. The law imposes no other requirements than that the parents are married and that the child is theirs. The timing of the marriage is irrelevant in this regard – shared parental responsibility applies from the time the parents get married, regardless of whether this happens after the child's birth.

It is worth noting that married parents do not have the option to agree on a different distribution of parental responsibility. As long as the marriage continues, parental responsibility must remain shared.

In Case of Separation and Divorce

When married parents separate or divorce, they usually continue to have shared parental responsibility, see the Children Act § 34 second paragraph. Unlike during the marriage, the law now permits contractual freedom. According to the Children Act § 34 second paragraph, the parents can agree that either the mother or the father will have parental responsibility alone, or that they will continue to share parental responsibility.

Unmarried Parents – Significance of Birth Date

The rules for unmarried parents underwent a significant change in 2020. For children born after January 1, 2020, the Children Act § 35 stipulates that parents who are not married also have shared parental responsibility. This applies completely irrespective of the form of cohabitation.

This change came after a prolonged debate on whether shared parental responsibility should be the main rule for all children. The legislative change, adopted in March 2017 and effective from January 1, 2020, removed what was referred to as "the last vestige of the maternal presumption" – namely the assumption that the mother is best suited to have responsibility for small children.

If the parents do not live together, the law allows the mother to notify the national registry within one year from the determination of paternity if she wishes to have parental responsibility alone. The same applies if the father does not want shared parental responsibility. In such cases, the mother receives parental responsibility alone.

Children Born Before 2020 – Different Rules Based on Cohabitation Form

For children born before January 1, 2020, different rules about parental responsibility apply, depending on the parents' form of cohabitation:

1. Cohabiting: Have shared parental responsibility for their common children, see the Children Act § 35 second paragraph (as the provision stood before the change in 2017). To register shared parental responsibility for cohabiting parents under these rules, paternity must be established, and the parents must either be registered at the same address or have declared to the national registry that they live together.

2. Neither Married nor Cohabiting: When the parents are neither married nor living together, and the child was born before January 1, 2020, the mother has parental responsibility alone, see the Children Act § 35 first paragraph (as it stood before the change). In these cases, the parents have complete contractual freedom and can notify the national registry that they will have shared parental responsibility, or that the father will have parental responsibility alone.

Consequences of Cohabitation Breakdown

When cohabiting parents separate, they will still have shared parental responsibility until they possibly agree that one of them should have it alone. This follows the Children Act § 35 second paragraph, which states that the provision in § 34 second paragraph applies accordingly for cohabiting parents who separate.

Requirements for Valid Agreements on Parental Responsibility

In cases where there is freedom of contract regarding parental responsibility, an absolute requirement for the validity of such agreements is that they are reported to the national registry, see the Children Act § 39. Agreements on parental responsibility are not valid unless they are reported to the national registry. If notification is not given, the law's default position determines who has parental responsibility.

If the parents do not agree on who should have parental responsibility, the courts can decide the matter, see the Children Act § 56.

Parental Responsibility After Death

The Children Act has specific rules on who should have parental responsibility after a death:

1. Shared Parental Responsibility: If the parents have shared parental responsibility and one dies, the surviving parent retains parental responsibility alone, see the Children Act § 38 first paragraph.

2. Cohabiting Parents: If the child lives with both parents and one dies, the surviving parent receives parental responsibility alone. This applies even if only the deceased originally had parental responsibility, see the Children Act § 38 second paragraph.

An important exception is introduced for cases where the survivor is charged or accused of the intentional killing of the other parent. In such cases, the survivor does not automatically receive parental responsibility alone. The district court must make a preliminary decision about this. In such cases, the survivor will only receive parental responsibility if it is clearly in the child's best interest.

The law also allows others to claim parental responsibility after a death. If the person who receives parental responsibility under § 38 first paragraph was not living with the child, others can file a case within six months of the death to claim parental responsibility and to have a permanent residence with the child.

If a death results in no one having parental responsibility for a child, the court will address the issue on its own initiative. Those who wish to take on parental responsibility can apply to the court where the child lives, and such applications can be made informally without the need for a formal complaint.

Conclusion

The rules of the Children Act regarding parental responsibility are complex and have undergone significant changes in recent years. The main trend has been to strengthen the principle of shared parental responsibility, regardless of the parents' form of cohabitation. At the same time, the law allows flexibility in the form of contractual freedom in many situations and has special rules to ensure the child's best interests in specific situations such as after a death.