The Athens Single-Member Court of First Instance, by a recent judgment, rejected an application for joint custody, on the ground that any assignment of custody of the minor child jointly to the plaintiff parents would lead to an inability to take responsible and stable decisions concerning the child and, ultimately, would conflict with the child’s best interests, as dictated by the child’s everyday and psychological needs (Athens Single-Member Court of First Instance (MPrAth) 10852/2023).
More specifically, as noted in the reasoning of the judgment, the reasons why joint parental care cannot function may be either non-culpable for one or both parents (e.g. differing views on upbringing, education, religious instruction, a great distance between the two parents’ places of residence, intense professional commitments of one parent, prolonged absence of one parent for professional or other reasons), or culpable (e.g. use of the exercise of custody as a pretext for venting feelings of revenge against the other parent, for extracting unlawful financial benefit at the expense of the other parent, false denunciations of crimes against the sexual dignity of the child, etc.). In such cases, each parent has recourse to mediation, save in cases of domestic violence, and ultimately, where mediation fails, the court decides.
The court, pursuant to Article 1514 paragraph 3 of the Civil Code (AK), may, depending on the case, (a) allocate the exercise of parental care between the parents, specify the manner of its exercise on individual matters, or assign the exercise of parental care to one parent or to a third party, (b) order an expert examination or any other appropriate measure, (c) order mediation or the resumption of interrupted mediation, simultaneously appointing the mediator. The court will therefore decide which measure it considers suitable for the child, for the specific child and for the specific case, guided of course by the best interests of the child.
Where it is found that the parents’ relationship has been completely broken down and that the parents will not cooperate in the future for the benefit of their child, the court should order the allocation of the exercise of custody or its exclusive assignment to one parent, provided that this most effectively secures the avoidance of continuous and generalised conflicts between the parents, or, as the case may be, the better care of the child in its best interests, the promotion of which must be the evaluative criterion for the judicial regulation of parental care.
In the present case, according to the reasoning of the court, the litigants failed to handle their conflicting relationship, the separation, and the transition of their family to the new circumstances with composure, level-headedness, and moderation. The court noted that the fact that the litigant parents have failed, and to date continue to fail, under the emotional weight of the circumstances, to overcome their mutual suspicion and to communicate with composure, level-headedness, and sincerity regarding matters concerning their child, as well as the fact that the interpersonal relationship between the parents has been completely broken down and is permeated by intense hostility, continuing to be conflictual at the time of the hearing, with further judicial disputes (civil and criminal) yet to come, precludes any possibility of assigning joint custody of their child to them.
In the court’s view, the successful operation of joint custody of a minor child by both parents in all individual aspects of custody presupposes a minimum level of mutual understanding in the parents’ relationship, with parents who have consciously decided to set aside their personal differences and are able to cooperate in shaping an environment that will favour the unimpeded everyday and psychological development of their child, so that the parallel existence of two centres of the child’s life does not unsettle and destabilise its life nor create a lack of stability and a sense of insecurity. Therefore, the option for the parents to continue to exercise custody of their child jointly is preferred when the parents appear willing to communicate harmoniously and to cooperate in order to take jointly the decisions concerning the child. No such intention was at all proven in the case under examination, with the result that any attempt at joint decision-making and cooperation becomes, as a matter of fact, exceptionally difficult, leading the joint exercise of custody to dysfunction and, therefore, inevitably to a deadlock.
- See also article Revocation of Interim Measures Decision
- See also article Divorce
- See also article Relocation of the Family Home
- See also article Joint Custody of a Child
- See also article Child Maintenance — Methods of Collection
- See also article Custody and Child Abduction
- See also article Change of City for Minor Children
- See also article Surrogate Mother — Court Authorisation
FREQUENTLY ASKED QUESTIONS ON REJECTION OF JOINT CUSTODY
1. When does the court reject an application for joint custody of a child?
The court rejects an application for joint custody when it finds that the parents’ relationship has been completely broken down and that there is no minimum level of communication and cooperation required for joint decisions concerning the child. In the recent judgment 10852/2023 of the Athens Single-Member Court of First Instance, it was held that intense hostility, mutual suspicion, and parallel civil and criminal disputes preclude the possibility of joint exercise of custody. The criterion is always the best interests of the child, as derived from the child’s everyday and psychological needs, and not formal equality between the parents.
2. What can I do if my application was rejected?
It is possible to lodge an appeal before the Court of Appeals within the time limits set by law, provided there are well-founded grounds for challenging the first-instance judgment. Additionally, if circumstances change substantially in the future — such as the maturing of the parents’ relationship, the end of the disputes, or a change in the child’s living circumstances — a new lawsuit may be filed for the modification of the judgment under Article 1536 of the Civil Code (AK). At the same time, recourse to mediation may ease tensions and create a basis for future review.
3. How long does the judicial procedure take?
The lawsuit for the regulation of parental care and custody is heard at the Single-Member Court of First Instance and, depending on the court’s caseload, the hearing is generally scheduled within 8 to 18 months of filing. The issuance of the judgment usually follows 4 to 10 months after the hearing. In urgent cases, an application for interim measures or a temporary restraining order may be submitted in parallel, and these are heard much more swiftly. At second instance, the hearing of the appeal usually requires an additional 12 to 24 months until a final judgment is issued.
4. What evidence do I need for the court?
You will need a family status certificate, the child’s birth registration certificate, evidence of residence and employment, tax assessment notices, and any document substantiating the financial and everyday circumstances. Of particular value are documents and witness testimony proving the actual relationship of each parent with the child, participation in the child’s daily life, parenting capabilities, and — where applicable — problematic behaviour by the other parent. Communication via messages, email, medical certificates, and reports from school and psychologists strengthen the argument before the judge.
5. What are the chances of overturning the ruling?
An overturning at the Court of Appeals depends on the substantiation of an erroneous evaluation of the evidence, omission of crucial elements, or erroneous interpretation of Article 1514 of the Civil Code (AK). When the first-instance judgment is based on a finding of complete breakdown of the parents’ relationship with detailed reasoning, an overturning is difficult, unless new facts or contradictions in the reasoning are raised. In any event, the assessment is made after careful study of the case file, since the best interests of the child remain the overriding criterion and each case is judged on the basis of its own facts.
6. What is the role of the lawyer in such cases?
The lawyer analyses the facts of the family relationship, designs the procedural strategy, and drafts the lawsuit or appeal with detailed argumentation centred on the best interests of the child. The lawyer gathers evidence, prepares witnesses, represents the parent in court, and refutes the opposing party’s claims. They also guide the client through the mediation procedure, which in many cases is a prerequisite, and assess whether grounds exist for a parallel application for interim measures or a temporary restraining order, so as to regulate the parent-child relationship immediately until the final ruling.