Will children soon arrange their own residence arrangements?
A relationship breakup logically brings with it many practical concerns: Which of the partners will stay in the home? How will the children's stay be arranged with my ex-partner? Do financial arrangements need to be made?
The optimal scenario is for both parents to reach an amicable and realistic solution in the best interests of the children. Unfortunately, practice teaches us that sometimes the parents' views are so far apart that the court's intervention is necessary to impose provisional measures. This article explains the extent to which courts take the views of the child into account, in light of a society in which newly formed families are becoming more common.
From what age does the judge hear the child?
The law states that the minor child has the right to be heard in matters affecting him/her regarding the exercise of parental authority, residence arrangements and the right to personal contact. When the child twelve years of age or older is, the minor is always given the opportunity to be heard by the judge. The child is free to decide whether to accept the judge's invitation.
If the child is under 12, the judge has no obligation to invite the child. However, it may be requested to hear children of this age as well. For this purpose, the judge will decide whether this is desired according to the circumstances.
Impact of the child's opinion
If the child makes certain statements in the interview with the judge, it does not mean that this arrangement will be imposed automatically. The law requires that appropriate importance be given to the minor's opinion in accordance with his age and maturity. The judge will also consider other factors involved in a given situation. The older the child, the more weight the judge will give to his opinion.
Modernization and the Constitutional Court
In recent years, practice has shown us that modern family forms are on the rise, including newly formed families. From this perspective, in the year 2022, it is certainly not inconceivable for a child to have half-brothers and/or half-sisters. There has been recent discussion in case law and legal doctrine regarding the hearing rights of these minor half-siblings and half-brothers when imposing an applicable residence order on a minor.
The Constitutional Court settled this discussion in a recent ruling on April 21, 2022, and took a progressive stance. This is, in our view, certainly to be welcomed. The Constitutional Court decided that the right to be heard in judicial proceedings to determine a residence arrangement for a minor belongs not only to the minor in question himself, but also to his minor half-sisters and half-brothers.
Indeed, the court's decision directly affects the rights of the half-sisters and half-brothers of the minor in question. This is related to the principle that siblings (as well as half-siblings) should not be separated from each other.
This decision of the Constitutional Court ensures that the judge will have a more complete and factual picture of a minor's residence situation in order to make an appropriate decision. However, practice will have to show to what extent the courts will take into account the opinions of half-brothers and half-sisters.
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 family law specialists are always ready to help you further.
