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1e proef The link between child maintenance and contact Branka Rešetar 1. Introduction (Non)-linking between contact and maintenance in some

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1e proef The link between child maintenance and contact Branka Rešetar 1. Introduction (Non)-linking between contact and maintenance in some european legal systems German law Croatian law English law Swedish law Comparative conclusion Results of interdisciplinary research Conclusion Intersentia 277 The Future of Family Property in Europe.indd :36:56 1e proef Branka Rešetar 1. Introduction Child maintenance and contact concerning the child are the most important parts of the legal relationship between the child and the non-resident parent. However, these legal aspects of parentage are, in principle, regulated separately. The issue of maintenance as a child s right has been treated as an independent legal consequence of parentage, viewed from the fact that child maintenance should always be a duty of parents, regardless of whether parents perform their parental responsibilities or not. Thus, child maintenance tends to be regulated separately from the issue of parental responsibility in both national and international instruments. 1 On the other hand, the issue of the personal relationship between the non-resident parent and the child has been treated as a part of parental responsibilities. It is viewed in two distinct ways both as a parental right to contact and as a parental duty securing the child s right to maintain contact. If anyone has a duty, ironically it is the resident parent who has the responsibility to enable and support the non-resident parent s right to maintain contact with the child. Accordingly, international as well as national instruments regulate the issue of contact separately from child maintenance, without making any connection between the two. 2 Frequently, the borderline between extended contact and alternative residence is not completely clear. 3 It is possible to decide that the child shall reside with one parent but shall have contact with the non-resident parent comprising up to 50% of its time. Alternatively the same arrangement can be viewed as one of shared or joint residence. In either case, in practice, the child lives equally with each parent but in the first case the arrangement is described as extended contact, while the second case is regarded as one of alternative residence. If a maintenance regime takes account of the amount of time a child lives with a parent, it implicitly makes a link between contact and maintenance. Whether one calls a 50/50 arrangement residence or contact obviously is a semantic game. Yet, it is a game with important consequences for maintenance, which is likely to be owed under one label but perhaps not under the other. The tension, it seems, is to preserve the 1 Eg most recently: Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (2007) and Council Regulation (EC) No. 4/2009 of 18 December 2008 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decision and Cooperation in Matters relating to Maintenance Obligations. 2 Eg European Convention of 15 May 2003 on Contact concerning Children and Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility. 3 A. Singer, Active Parenting or Solomon s Justice?, in K. Boele-Woelki (ed.), Debates in Family Law around the Globe at the Dawn of the 21st Century, Intersentia, Antwerp-Oxford- Portland, 2009, p Intersentia The Future of Family Property in Europe.indd :36:56 The link between child maintenance and contact 1e proef theoretical separation of contact and maintenance, while acknowledging their linkage in practice (at least in some national legal systems). The lack of a legal link between contact (or alternative residence) and maintenance might result from a lack of legislative intention to improve the personal relationship between the child and the non-resident parent (mostly fathers). If the level of contact or the costs of maintaining contact with the child do not affect child maintenance, this suggests that the role of fathers is viewed principally as that of financial provider, with less attention paid to nurturing a social, caring relationship between the father and child. That also suggests that the state is primarily interested in fathers financial support of their children. 4 However, most European systems have succeeded, on various bases, in establishing a connection between contact or alternative residence (including joint parental authority) and maintenance when calculating maintenance contributions. In such systems, the frequency of contact or alternative residence influences not only the amount due but sometimes whether there is a duty to pay maintenance at all. 5 This issue has lately evoked intensive discussions in some systems. 6 The aim of this paper is to draw a comparison between some European legal systems according to the criterion of (non-)linking of child maintenance and contact between the child and the non-resident parent. After a brief glance at the regulation of contact concerning children and child maintenance, as well as at the links or lack of links between them in a chosen legal system, various similarities and differences will be identified. Then, consideration will be given to the latest comparative research in the areas of psychology and sociology aimed at providing evidence of a firm bond between fulfilling the duty of child maintenance and exercising contact between the child and the non-resident parent. In that regard, this chapter asks whether or not the bond between child maintenance and the exercise of contact when regulating contact, alternative residence or child maintenance should be neglected. The final answer will be based on the sociological research findings. 4 Compare: J. Fortin, Children s Rights and the Developing Law, Cambridge University Press, 2005, p Sweden, Denmark, Norway, Belgium, Finland, France, Germany, Netherlands, Sweden. A. Saldeen, Sweden, in C. Hamilton and A. Perry, (eds.), Family law in Europe, Tottel Publishing Ltd, West Sussex, 2006, p and C. Skinner, J. Bradshaw and J. Davidson, Child support policy: An international perspective, UK Department for Work and Pensions, p (last visited ). 6 S. Gilmore, ReB (Contact: Child Support) horses and carts: contact and child support, Child and Family Law Quarterly, Vol. 19, No 3, 2007, p and A. Singer, Active Parenting or Solomon s Justice?, in K. Boele-Woelki (ed.), Debates in Family Law around the Globe at the Dawn of the 21st Century, Intersentia, Antwerp-Oxford-Portland, 2009, p Intersentia 279 The Future of Family Property in Europe.indd :36:56 1e proef Branka Rešetar 2. (Non)-linking between contact and maintenance in some european legal systems National legal systems regulate the child s right to contact and his/her right to maintenance totally separately. However, there are some European legal systems where the legislation has indeed established a link between contact and child maintenance whereas, in others, there is no such bond. This paper will examine two legal systems which do not include a link between contact and maintenance: the German and the Croatian systems; and two systems which have, unlike the former two, created such a link on a legal level: the English and Swedish legal systems Ger man law Contact concerning children and child maintenance are regulated separately under German law. According to the general provision, the child s right to contact with the mother and father is regulated under 1626 para. 3. sent. 1. of the German Civil Code (Bürgerliches Gesetzbuch BGB). This states that contact with both parents is in the interests of the child. The right and duties of contact exist irrespective of who actually holds parental custody. The child has a right of contact with each parent also according to 1684 para. 1. BGB. Contact may become an issue in the case of sole parental custody, ie when the non-resident parent is restricted to contact, or in the case of joint parental custody. In the latter case the non-resident parent has the right and duty to contact with the child in addition to his continuing duties of parental custody. 7 Child maintenance is regulated separately and special statutory provisions regulate maintenance claims of children against their parents. Child maintenance follows from being a (legal) parent. The duty to maintain minor children is independent of whether the parent has parental custody. However, there is an interdependence of parental care (by parent with whom the child is living) and the duty to maintain. That is reflected in the fact that unlike any other obligees by 1606 III of the BGB, a parent with whom the child is living or who takes care of the child fulfils their obligation to contribute to the maintenance of the minor unmarried child by providing care and upbringing. 8 The parent who is not living 7 D. Schwab, P. Gottwald and E. Nourney, Germany (September 2006), in W. Pintens (ed.), Family and Succession Law Suppl. 32, International Encyclopedia of Laws, Kluwer Law International, The Hague/London/New York, 2002, p Ibid., p Intersentia The Future of Family Property in Europe.indd :36:56 The link between child maintenance and contact 1e proef with the child is obliged to pay maintenance. This division of liabilities does not depend how parental custody is regulated. In such situations, the child has the right to contact with the non-resident parent according to 1684 of the BGB. The level of maintenance payable by the parent who is not living with the child is determined according to the general rule of 1610 of the BGB. The minimum maintenance for the minor child is determined by 1612a. The courts also use tables relating to the parent s income and child s age to harmonise judicial practice. 9 Neither regular contact with the child nor going on holiday with the non-resident parent influences the amount of child maintenance. On the contrary, it is derived from the monthly maintenance rates in the Düsseldorf Table which also sets out a framework for needs and assumes the ordinary right to contact. 10 For a long time, the governing principle has been that the resident parent should provide care and the non-resident parent maintenance. However, in reality, more and more parents (married or unmarried) who exercise joint care after separation or divorce are taking care of their children in turns. The practical details of such care of children in turns are determined by the parents themselves, as they see fit, on a weekly or monthly basis or even on particular days in a week, share the children. That kind of provision of joint care is called Wechselmodell. Still, if both parents provide maintenance in kind by means of caring for children in turns, do they also have to provide financial maintenance? The BGB does not regulate this issue, so it has had to be dealt with by judicial practice. 11 The Federal Court of Germany has, in two recent cases, determined whether certain contact arrangements amount to Wechselmodell or not, and what implications the model had on the child maintenance liability. In the first case, the mother took care of a minor child two-thirds of the time, and the father one third of the time. The mother argued that the father should pay the total amount of child maintenance. The court decided that the father, despite his share in the care of the child, had to provide 100% of maintenance in cash according to 1606 para 3 of the BGB; the principle that one parent should provide maintenance in the form of care and upbringing refers only to the other parent. The amount of financial maintenance owed is determined simply according to the income and financial situation of the non-resident parent. In the view of the Federal Court of Germany, a different outcome is only possible in cases of reales Wechselmodell, 9 Ibid., p H.J. Dose, P. Gerhard, W. Gutdeuch, O. Haußleiter, D. Pauling, H. Scholz, und W. Thalmann, Das Unterhaltsrecht in der familienrichterlichen Praxis, Verlag C.H. Beck, Munich, 2000, p H. Luthin, BGH: Barunterhaltspflicht bei sog. Wechelmodell, Zeitschrift für das gesamte Familienrecht, 14/2006, p and (last visited ). Intersentia 281 The Future of Family Property in Europe.indd :36:56 1e proef Branka Rešetar ie when both parents provide the child with virtually the same level of care. This was the situation in the second case considered by the Federal Court. In that situation, irrespective of their personal financial situations, both parents have to provide comparable shares of financial maintenance. The maintenance in kind provided by both parents is taken into account to the same proportion of their income. The amount of financial maintenance is determined according to the parties joint revenue and property. Therefore, if one parent s income is greater than the other s, the maintenance share of former should also be bigger. The exact amount of financial maintenance results from precise mathematical calculations of parents income. The child s needs are also increased due to the shared care arrangement (Wechselmodell). 12 One may draw the conclusion that the German legislation generally does not deem contact with the child and maintenance payment as mutually connected. Nevertheless, increasingly couples share the actual day-to-day care of the child, but unless the care is shared equally (reales Wechselmodell) this is not taken into account in the calculation of the child maintenance Croatian law Under Croatian law, the term contact with children refers to the personal relationship between the child and the parent who lives in a different residence, including planned visits, the time spent together on particular days, weeks or even longer periods of time. 13 Decisions on contact are typically made after the parents divorce or termination of their long-term relationship. Also, judicial decisions on contact with the child are made on occasions when the child is born in an extramarital relationship or when its parentage is determined in judicial proceedings. In those cases, whether or not the parents had ever lived together, or had any relationship before the child was born plays no role whatsoever. In such circumstances the non-resident parent must apply for a court decision on contact with the child, but the right to contact with the child arises from legal parentage. According to Article 87 para 3 of the Family Act, the child has the right to contact with the parent if they live separately. Provisions on child maintenance are contained in a special part of the Family Act. Hence, child maintenance regulation is not connected with regulation of the child s right to contact in any way whatsoever. The basic principle for determining child maintenance has been copied from the German legal system: the principle 12 BGH NJW 2006, 2258; FamRZ 2006, 1015 and BGH NJW 2007; 1961, FamRZ 2007, 793. See H. Luthin, FamRZ 2006, 1018 and FamRZ 2007, D. Hrabar, Obiteljskopravni odnosi roditelja i djece, in M. Alinčić, D. Hrabar, D. Jakovac- Lozić and A. Korać, Obiteljsko pravo, Narodne novine d.d., Zagreb, 2007, p Intersentia The Future of Family Property in Europe.indd :36:56 The link between child maintenance and contact 1e proef that equates the care of the resident parent with the maintenance or support of the non-resident parent. That means the legal equation of the care, protection and education of a minor child provided by the resident parent with the pecuniary maintenance from the non-resident parent (Art. 233 of the Family Law Act). Moreover, the Croatian legislation has determined guidelines for three age categories children up to 6, children from 6 to 12 and children from 12 to 18, aimed at defining a minimum percentage of the average Croatian salary intended for child maintenance (17% for the first category, 20% for the second and 22% for the third). The court may additionally determine larger amounts of money for maintenance if the child s needs are greater, or where the parents are wealthy on the basis that the living standard of children should correspond to the living standard of the parent (Art. 232 para 3 of the Family Act). If a maintenance debtor has more that one child who can claim maintenance (Art. 232 para 5 of the Family Act) or a child has been receiving its own income 14 which contributes towards the child s maintenance (Art. 211 of the Family Act), the court may order lower child maintenance, but not less than half the minimum support. This means that the amount of child maintenance can be reduced if the debtor has got more than one child or if the child has its own income and contributes towards its maintenance. 15 Neither regular contact with the child nor going on holiday with the non-resident parent influences the amount of child maintenance. Moreover, repeated frequent contact with the child exceeding the period of time defined as regular contact (every second weekend and half of the school holidays) does not have an effect on child support liability. However, the principle equating the care of the resident parent with the maintenance or support of the non-resident parent should, according to academic commentaries, be seen as a rebuttable presumption. 16 According to that opinion, it is open to the non-resident parent, in any court proceedings, to try to prove the opposite, ie that he (or she) spends more time with the child than stipulated by regular contact, and thus provides the child with more care, protection and education. It further means that the non-resident parent, apart from meeting his (her) liability of maintenance, takes over part of the liabilities for which the resident parent is liable. In other words, on this view, child maintenance could be reduced if the contact between the child and the nonresident parent goes beyond the regular framework i.e. every second weekend, 14 According to Art of the Family Act: A minor child can obtain property by inheritance, bestowal, based on its revenue or pursuant to some other legal basis. The minor s property is governed by its parents, except in cases a minor obtained its property based on its revenue after its 15th birthday. According to Art of the Family Act: A child with its revenue is obliged to make contributions to its maintenance. 15 A. Korać, Uzdržavanje, in M. Alinčić, D. Hrabar, D. Jakovac-Lozić and A. Korać, Obiteljsko pravo, Narodne novine 2006, p B. Rešetar and S. Ledić, Određivanje uzdržavanja za maloljetnu djecu prema Noveli Obiteljskog zakona iz 2007, Hrvatska pravna revija, 11/2009, p. 51. Intersentia 283 The Future of Family Property in Europe.indd :36:56 1e proef Branka Rešetar half of the winter and summer school holidays and every second holiday. 17 If the child, beside the regular contact, spends a further two days in a week with the non-resident parent, then the court should deem the time to be divided equally between the parents. On the other hand, logically, the amount of time the nonresident parent spends with the child indeed reduces the maintenance costs of the resident parent and, simultaneously, raises the maintenance costs of the nonresident parent. However, shared care or alternative residence is still very rare in practice and results only from mutual agreement of the parents. In such cases, parents must stipulate the level of maintenance, which can be zero. Summing up, for the time being, Croatian legislation does not make any link between child maintenance and contact, regardless of the frequency of the latter. Consequently, Croatian judges, unlike their German colleagues, continue to refuse to deal with this issue, ie the existence of a bond between child maintenance and alternative residence or shared care. This has resulted in injustice in practice English law English law recognises no right to contact, as such, but contact with the child can be obtained by the non-resident parent or other person via a
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