DENMARK: Parliament to end 50-50 child custody rule

Summary: Acknowledging that forced co-operation and shared custody do not work for all divorced families, politicians rethink law.

[13 February 2012] - In a unanimous decision, the political parties agreed last week on a plan to change the national child custody laws, abolishing the default 50-50 shared custody arrangement for the children of divorced parents.

With the agreement, the MPs acknowledged that while the ‘parental responsibility act’ (forældreansvarslov), which the new law will replace, was meant to ensure that both parents maintain optimal connections with their children, in practice it exposes the children to ongoing conflicts and undue stress.

“Before, the law focused on parents’ rights to their children. Now, we want to focus on the children’s rights. The children have been left alone with the burden of getting their parents to co-operate with one another, but now we’re going to take that burden off their shoulders,” Karen Hækkerup (Socialdemokraterne), the social and immigration minister, told Ritzau news service. Hækkerup has spearheaded the negotiations for the law change.

The parental responsibility act was introduced in 2007 – also by a unanimous parliament. It made forced co-operation and 50-50 shared custody the default decision in all child custody cases where parents cannot agree on an alternative arrangement and where both parents are deemed responsible. Under the law, each parent has custody on alternating weeks.

While it was intended as a fairer solution than earlier custody practices which typically favoured the custody rights of the mother over the father, forced shared custody has proven problematic – particularly because it has been applied to divorced couples who cannot agree on an alternative arrangement. The state and courts have insisted that they co-operate with one another, exchanging the children every seven days.

With the coming law change, that rigid arrangement will end and individual custody schedules that are deemed to be good for the children will be determined based on evaluations by counsellors experienced in children's cases.

“Parents who cannot co-operate and who are fighting a lot will no longer necessarily be forced to share custody of their children,” Hækkerup said.

The new law will also set a cap on the number of times a parent can sue for custody, whereas the old law had no limit.

“Some people have used the parental responsibility act as a springboard for lodging one case after another. As soon as the one case about time sharing or the child’s living arrangement is finished on a Monday, they file a new one on Tuesday,” Hækkerup added.

In the future, the state's administrative arm, Statsforvaltningen, will determine whether a situation has changed enough to justify a renewed custody suit. If the administration determines that it has not, and that the suit is not in the child’s best interest, the administration will be allowed to throw it out.

“We are making sure that the law will protect the interests of the children to a much greater degree than before,” added Hækkerup.

Further Information: 

• Case law on the right to parent-child contact in Botswana
• Case law concerning the determination of custory for a child in the Dominican Republic
• Case law on child custody in Namibia
• Case law on the determination of custody in the best interests of the child in Vanuatu
• More on children's rights in Denmark