My ex-partner is not living up to the residency agreement: now what?
The end of a relationship can be an enormously emotionally charged process for the people involved, especially if concrete solutions need to be sought in order to make arrangements for the minor children. After all, reality shows that when a relationship breaks down, a child is left with a mountain of emotions that cannot always be expressed. An important aspect of meeting the needs of minor children is to agree on a balanced living arrangement that both parents and children feel comfortable with. In reality, the level of conflict following a relationship breakdown is sometimes so high that there is no agreement on the residence arrangement. This article explains the extent to which residence arrangements for the minor children can be established and what possible tools are available to enforce compliance with those arrangements.
**Agreement versus court decision
The law initially leaves the ex-partners free to come to an agreement on the residence arrangement. Indeed, this is based on the principle that a residence arrangement supported and agreed upon by both parents would be the best for the children. There are different routes for ex-partners to reach such an amicable settlement, such as through a certified mediator or negotiations through lawyers. Obtaining a solution through the amicable route will usually cause less conflict.
If the ex-partners do not reach an agreement on the residence arrangement and thus there are significant problems in practice, proceedings can be initiated before the Family Court to have a residence arrangement determined by a judge. Then the situation rather shifts to a polarizing context, where both ex-partners present their arguments and positions to the court in order to convince the latter what would be the best residence arrangement for the children. The judge will then make a decision based on the best interests of the child and the concrete circumstances. The disadvantage of this procedure is that the final decision will not necessarily be borne by both parents and there is a risk that one of the parents will not want to comply with the residence arrangement. How to then cope with such scenarios will be discussed further.
What if the residency rule is not followed?
If the ex-partners had merely reached a residence agreement by mutual consent, there is no residence agreement that has enforceable force. Indeed, there is no obligation to submit the agreement on the residence arrangement to the court, unless the parents in question were married and filed for divorce by mutual consent. In the latter case, the residence arrangement for the minor children will always have to pass through the court.
Should it turn out that the residency arrangement agreed between ex-partners is not being respected, each parent can activate the family court in order to obtain a court order establishing the residency arrangement in this way. After all, it may be that changed circumstances have surfaced that there are concerns in the environment of one of the parents. The judgment that establishes the stay order will then have enforceable force, so the parent who fails to comply with the order risks sanctions at both the criminal and civil levels.
Measures for non-compliance with residence regulations
To accommodate non-compliance by one parent, there are several ways to still obtain enforcement.
A first, almost disused, method is the forced enforcement through a bailiff. This is only possible if it has been established that there have been several instances of non-compliance with the residence regulations in the past, that there is a court decision that has made a balancing of interests, and that enforcement is the last resort to ensure compliance. Only highly exceptional circumstances allow this method to be used.
A second means of pressure concerns the imposition of a penalty to the parent who fails to fulfill his/her obligations. If it is found that a parent systematically fails to comply with the residence order, the court may attach compliance to a penalty payment that must be paid for each established violation. In doing so, the court may determine the budget of the penalty payment so that it puts sufficient pressure on the parent to comply with the obligations anyway. If the parent in question then again fails to comply with the residence order, the judicial officer may proceed with recovery.
In addition to the above measures, there are also accompanying research measures possible, such as starting an expert investigation that examines the underlying issues. Bodies such as, for example, Triangel, Het Huis, CAW,... can advise the court on the residence arrangement, after they have done a detailed investigation on the circumstances within a family context.
Finally, non-compliance with a residence order is also a crime, where a prison sentence and/or fine can be imposed by the criminal court.
Would you like more information about this? Then please feel free to contact us at info@bannister.be or at 03/369.28.00. Our team is always ready to help you further.
