Verdict:

I. The revision is denied.

II. The petitioner and the opposing participant each bear their own costs of the revision proceedings.

Explanation:

The court of first instance entrusted the minor son A. A., born ... 2016, of the litigants, to the care and upbringing of both parents after their divorce. The permanent residence of the minor A. A. was determined at the mother's address. It also determined the method of executing joint parenthood, in such a way that the contacts between the minor A. A. and his father will take place for the first two months every weekend from Saturday from 10.00 am to Sunday until 6.00 pm and every Tuesday afternoon from 4.00 pm to 6.00 pm, the next two months every other weekend from Friday afternoon from 4.00 pm until Sunday until 6.00 pm and during the week when there is no weekend contact, from Tuesday from 4.00 pm until Wednesday morning until 8.00 am, when he takes him to kindergarten or school, then every other weekend from Friday afternoon from 2.00 pm until Monday morning until 8.00 am and during the week when there is no weekend contact, from Tuesday from 4.00 pm until Thursday morning until 8.00 am. It also determined that during the summer holidays, A. A. spends the first year for one week with the mother and father, the following year for two weeks with the mother and father, other holidays half with each of the parents, Christmas and New Year holidays alternately with both parents, Easter Sunday with the parent with whom he is on weekend contact at that time, Easter Monday with the other parent. It also decided that the petitioner is obliged to pay a monthly child support for the minor A. A. in the amount of 390.00 EUR.

The second-instance court granted the petitioner's appeal and modified the decision of the first-instance court regarding the final arrangement of contact, so that A. A. spends alternating uninterrupted weeks with each parent. The decision regarding the maintenance obligation of the petitioner was annulled and the case was remitted to the first-instance court for a new trial. In all other respects, the petitioner's appeal and the respondent's appeal were dismissed in their entirety, confirming the contested part of the first-instance court's ruling without any changes or annulments.

The Supreme Court, by ruling II DoR 355/2022 dated 3 November 2022, allowed the respondent's request for revision on the issue of whether the decision on equal distribution of contact between the parents (week/week) is in the best interest of the child in the specific case.

Revision:

Based on this ruling, the respondent submits a request for revision. Initially, it is pointed out that in the field of shared parenting and determination of the scope of contact, different courts handle the matter differently. The fact that the court opted for shared parenting does not automatically lead to the conclusion that the proposed contact arrangement, such as week/week, is beneficial. It should be taken into account that these are parents who are unable to communicate, and the communication through email from the father's side is authoritative and demanding, without providing equal standing. The father is currently facing criminal proceedings based on a final indictment, indicating reasonable suspicion of offenses against the respondent, specifically domestic violence under Article 191 of the Penal Code, rape under Article 170 of the Penal Code, and sexual violence under Article 171 of the Penal Code. It is emphasized that in the case of shared parenting, the parents should be capable of overcoming resentments stemming from their past romantic relationship. They should be able to engage in joint planning of the child's upbringing and care, as well as adapt to everyday situations.

The respondent states that none of the courts have made any ruling or expressed an opinion regarding the final indictment and the criminal proceedings, which may result in a prison sentence. The respondent had requested the indictment multiple times, but it was only successful after the expert opinion had been prepared. The court expert only mentioned that it is harmful for the respondent to file criminal complaints against the petitioner, disregarding the fact that the respondent had filed complaints against the petitioner for offenses committed against her. It is pointed out that none of the courts have addressed the relationship between the parents, which does not allow for shared parenting. Handing over the child once a week without any cooperation between the parents, especially considering the ongoing criminal proceedings against the petitioner, indicates that the relationship between the parents will deteriorate further.

The respondent highlights that the expert opinion questioned the father's hidden irritability and aggression, and detected fear in his behavior towards the former partner. The expert agreed with studies suggesting that it is beneficial for the child to spend one-third of the time with the father, including overnight stays. The expert found that A. A. is more attached to the respondent, and his relationship with the father is not clearly evident. On page 33, it was stated that the father is less aware of his problems with quick anger and intolerance towards others who do not comply with his demands. On page 36, the expert suggested that for the time being, contact with overnight stays should occur one day from Friday to Saturday or from Saturday to Sunday. After about six months, attempts should be made to introduce more overnight stays during holidays and vacations, depending on A. A.'s adjustment, with the assistance of psychological counseling. However, the court, without being aware of the circumstances regarding the father as indicated by the expert, made a decision on contact and deviated significantly from the expert's written opinion, without explaining why it would be in the best interest of the child. During the hearing, the expert supplemented the opinion by stating that increasing contact should be approached cautiously, as highlighted by A. A.'s psychologist, and suggested contact over weekends with one overnight stay and one day during the week. After one or two months, it was recommended to have contact every other weekend from Friday to Sunday or Monday morning. Only then did the expert propose introducing contact during holidays and vacations, considering that equal distribution of contact would be beneficial for the child, which was mentioned specifically for holiday and vacation periods, as the regular contact had already been precisely determined.

The respondent points out that based on the expert's opinion, the first-instance court had already ordered more contact than initially proposed. However, the second-instance court unreasonably increased the scope without any basis. Therefore, the respondent requests that the Supreme Court grant the revision and annul the decision of the second-instance court in point I, annul the decision of the first-instance court in the third sub-item of point II, and remand the case to the first-instance court for a new trial in this scope. Alternatively, it is requested to annul the decision of the second-instance court in point I and maintain the validity of the third sub-item of the decision of the first-instance court with the modification that the child is handed over at the mother's home and not at...

Response to Revision

The court served the revision to the petitioner, who responded to it. Initially, it is noted that the Supreme Court's decision to allow the revision was incorrect. According to the petitioner's assessment, the decision in the specific case, in which the Supreme Court was supposed to address the issue of whether the week/week distribution of contact is in the best interest of the minor A. A., cannot influence ensuring legal certainty, uniform application of the law, or the development of the law through judicial practice.

The petitioner argues that from the content of the respondent's revision, it is apparent that she also opposes the decision to entrust the child to both parents for upbringing and care. It is emphasized that the respondent filed all complaints against him contrary to the actual factual circumstances, believing that it would make her more successful in the proceedings regarding the upbringing and care of the child, as well as in resolving property matters. Only after the last hearing did the respondent submit a document to the court, attaching documents from the criminal proceedings. Therefore, the petitioner argues that it cannot be claimed that the courts did not address these documents. It is pointed out that the decision is in line with the expert opinion, especially its supplement, and the respondent's claim that the second-instance court deviated significantly from the opinion is unfounded. Thus, it is requested that the Supreme Court dismiss the revision as unfounded.

The revision is unfounded.

In the proceedings before the first-instance court, the respondent opposed shared parenting. She claimed that the petitioner had been violent towards her and the child, and had also been involved in violence towards his sons from a previous marriage. The first-instance court, based on all the evidence presented, particularly the reports from the Social Welfare Center (CSD) and the expert opinion, found that neither the police, nor the CSD, nor the expert could find evidence to substantiate the respondent's allegations of the petitioner's violence.

The expert, in her written expert opinion, assessed that both parents were burdened with their own difficulties due to the separation, which led them to focus more on their conflicts rather than on the needs and interests of A. A. However, the expert did not observe any circumstances indicating a lack of parental abilities in either parent. On the contrary, she found that both parents were capable of understanding and fulfilling the basic needs of the child, providing care and protection. However, they would need to establish emotional cooperation for the sake of A. A. The expert recommended their participation in parental counseling, where they would have the opportunity to develop a mutually supportive relationship beneficial for their child. The expert emphasized that despite poor communication between the parents, the contact arrangements were being executed smoothly during the proceedings, and there was no indication of distress or fear on the part of A. A. due to the contact. During the main hearing on March 28, 2022, the expert orally supplemented her written opinion. She highlighted that it would be best for A. A. if the court entrusted shared parenting to both parents. She assessed that such an arrangement would not be detrimental to the child, but it would require precise determination of the way shared parenting is implemented to reduce the possibility of conflict between the parents. Additionally, it would necessitate maintaining a minimum level of communication between the parents.

In her revision, the respondent already challenged the factual findings of the first and second-instance courts concerning the decision on shared parenting, which is not permitted under the second paragraph of Article 370 of the Code of Civil Procedure (ZPP). Therefore, her request for revision in this regard was not granted, and the Supreme Court does not respond to this part of the revision arguments.

Regarding the Manner of Implementing Shared Parenting

Professional research has led to the assessment that shared parenting, compared to sole custody, has a positive impact on the child's development, even in cases where one parent opposes such an arrangement and is compelled by a court decision. Based on these new professional insights, the legislator, in the Family Code (hereinafter referred to as DZ), in Article 138, unlike the previous Law on Marriage and Family Relations, enabled the court to entrust the child to the joint custody and care of both parents even when the parents do not agree, if it deems it beneficial for the child. With this provision, the DZ more precisely expresses the constitutional right to parenthood as stated in Article 54 of the Constitution. The legislator, in the explanation of the proposed new legal regulation, emphasized that such an arrangement follows the principle of equal parental responsibility towards children stated in Article 135 of the DZ. This principle implies that if possible, parents should maintain joint custody and care of the child even after the dissolution of the family. Only when the court determines that it would not be in the child's best interest, it can decide otherwise.

In cases where the court decides on shared parenting against one parent's will, it must also determine whether the parents can effectively communicate with each other about the implementation of shared parenting. If the court finds that they are unable to do so, it is in the child's best interest for the order to precisely define the manner of implementation. In general, for shared parenting, it is important that both parents have approximately equal opportunities to influence the child's upbringing and development. This can only be achieved if each parent spends enough quality time with the child. Therefore, the time when the child spends evenings and stays overnight with each parent is crucial, as it provides opportunities for significant social interactions and educational moments that "visits" alone cannot provide. By engaging in such everyday activities, trust is built between the child and the parents, and the parent-child bond is strengthened. The professional literature also highlights that for the development of quality interactions, promoting development, and maintaining important relationships between the parent and child, it is necessary for the child to spend sufficient time with each parent. However, determining shared parenting does not mean that the child must spend an equal amount of time with each parent. The decision on the manner of implementing shared parenting depends not only on psychological factors but also on financial and logistical considerations, which are connected to the parents' and child's daily schedules, the support of other individuals, the geographical distance between the parents' residences, and other factual circumstances, with the child's best interest being the primary consideration.

In her revision, the respondent claims that the second-instance court did not have a basis in the expert opinion for changing the manner of implementing shared parenting, which is not correct.

The expert stated in her written expert opinion that she agreed with researchers who found that it is beneficial for a child's quality relationship with their father to have contact for approximately one-third of the time, including overnight stays. Initially, she proposed that the child should have contact with the father that also involved overnight stays, starting with one day and extending to holidays. After about six months, the contact should progress to consecutive overnight stays, allowing the father to spend approximately one-third of the time with the child. She mentioned that it would be sensible to gradually introduce increased contact, for example, after six months (page 346).

During the main hearing on March 28, 2022, the expert further clarified that she provided the six-month adjustment period as an example only. In response to a question about a transitional period that would be beneficial for A. A., she stated, "The child should start with one overnight stay per week with the father, every Saturday and Sunday, even from Friday afternoon until Saturday afternoon, and also have afternoon visits with the father once a week. We should monitor how the child accepts such contact, but I believe that such contact should not be a problem. This is a matter of decision, but it is what the parents find difficult to accept. Such a regimen would be appropriate for one or two months, and then we could transition to contact where the father has the child every other weekend, starting on Friday and ending on Sunday or Monday morning, taking the child to daycare or school. The challenge is not the time spent with the father, but it should be introduced gradually. Then, the contact could be arranged as is usually done for summer vacations, autumn breaks, Christmas time, New Years’ time, May holidays, and other vacations and holidays. It would be in the child's best interest to distribute contact evenly between both parents, ensuring the child spends an equal amount of time with each parent" (page 397). She explained that it is difficult to determine the exact daily regimen that would be best, but it is important that A. A. spends sufficient quality time with the father. She stated that starting school is a period when the child is capable of spending more time outside the home without any harm. However, she also mentioned that the implementation of the contact arrangements should be monitored, responding to the child's needs, and changes should be introduced gradually.

 

The Supreme Court considers that in addition to the summarized expert opinions highlighted by the expert, the second-instance court also took into account how the manner of implementing shared parenting would be least burdensome for A. A., considering that he started attending school in September 2022. In the subsequent explanation, point 17 specifically noted that given the distance between the mother's residence in [location] and the father's residence in [location], it would be less demanding for A. A. if he spent one week continuously with each parent, and during that time, the respective parent would take care of his transportation to school and extracurricular activities (according to the latest documents in the case file, A. A. attends primary school in [location], which is approximately halfway between the residences of both parents). In order to tailor the implementation of shared parenting as much as possible to A. A.'s needs and reduce the possibility of conflicts between the parents, the court decided that after a week of contact, the first parent would bring A. A. to school, and the second parent would pick him up after school. In this way, not only the responsibility but also the financial and time burdens were evenly distributed between both parents.

The appellate court assesses that both courts (initially with interim measures and subsequently with the final, gradually expanding decision) gradually adjusted the decisions on the manner of implementing shared parenting to the changes in the parents' and their minor son's psychological, emotional, and actual lives, thus safeguarding the long-term interests of the minor A. A. to the greatest extent possible. It concluded that the revision was not justified and rejected it (Article 378 of the Code of Civil Procedure, ZPP).

Based on the first paragraph of Article 165 of the ZPP in connection with Articles 42 and 101 of the Act on Non-Contentious Civil Procedure, the Supreme Court ruled that each party shall bear its own costs of the revision proceedings.

The Supreme Court deliberated with the panel listed in the introduction of the decision. The decision was unanimously adopted (seventh paragraph of Article 324 of the ZPP).

1 B. Dobnik Renko, V. Navotnik, Skupna starševska skrb, Pravosodni bilten, no. 1/2022, p. 118.
2 Article 138 of the DZ: (1) If the parents do not live together or will no longer live together, they must agree on the custody and upbringing of their common children in accordance with their best interests. They can agree on shared custody and upbringing, where all children are under the care and upbringing of one of them or where some children are with one parent and others with the other. If they cannot reach an agreement, the social welfare center can assist them in reaching an agreement, and mediators can also assist at their request. (3) If the parents cannot agree on custody and upbringing, the court decides on this matter. The court can, ex officio and in accordance with the provisions of this code, also decide on all measures for the protection of the children's interests. In the process of deciding on custody and upbringing, the court always also decides on the maintenance of the common children and on contact with the parents in accordance with this code.
3 Proposal for the Family Code, EVA: 2016-2611-0062, first reading, p. 284.
4 See M. Čujovič in B. Novak (ed.), Commentary on the Family Code, Official Gazette of the Republic of Slovenia, Ljubljana 2019, p. 421.
5 See B. Dobnik Renko, V. Navotnik, cited work, p. 115.

Reference:

RS - Constitution, Laws, Agreements, Contracts
Constitution of the Republic of Slovenia (1991) - URS - Article 54
Family Code (2017) - DZ - Articles 135, 138