Custody of Children
Custody of children in finnish legislation
The provisions on custody of children are to be found in the Child Custody and Right of Access Act 361/1983). Custody can be decided on the basis of marriage, a court decision or an agreement between the parents. Custody of a child can be exercised either jointly by the parents of the child or by only one of the parents.
If the parents of the child are married to one another at the time of the birth of the child, they shall both have custody of the child. If the mother of the child is not married, she is the sole custodian. Also after the establishment of paternity, the mother will remain the sole custodian, unless the parents agree otherwise or a court order is issued in the matter.
Custody by virtue of birth can be changed either through a court order or an agreement between the parents, confirmed by the social authorities.
The parents can make a mutual agreement on either joint custody or on sole custody to one of them. An agreement on joint custody will in general be considered when the parents do not live together, for instance after a divorce. In general it is then also agreed with whom the child is to live and how the other parent is to maintain contact and visit the child. The agreement between the parents shall be confirmed by the social authorities.
If the parents cannot reach an agreement on the question of custody, the matter will be settled in court.
When the parents have joint custody they are together responsible for the duties inherent in custody, and they make joint decisions relating to the child, unless something else has been provided or ordered. Consequently, the consent of both custodians is, as a rule, necessary when significant matters relating to the person of the child are decided. Such are for instance decisions on the education of the child, changes in the place of residence of the child and obtaining of a (Finnish) passport for the child. If the parents have joint custody, neither parent has the right to change the child’s residence abroad without the consent of the other parent, not even if the child is staying with the parent that has removed him or her.
The situation is different if a parent is a sole custodian. In that case this parent alone makes decisions on matters relating to the person of the child. The consent of the other parent is not needed. In these cases the parent who is not a custodian is not entitled to decide for example where the child is to live and reside without the consent of the parent who has sole custody. If one of the parents has sole custody of the child, the other parent has no right to take the child abroad without the consent of the custodian.
The custody award is partly decisive in determining whether or not a child abduction has taken place.
Recognition and enforcement of decisions on custody
Finnish decisions abroad
The advantage of the Hague Convention on Child Abduction is that it aims exclusively at returning the abducted child. No specific recognition or enforcement of decisions is needed where the Hague Convention is concerned. If the Convention is not applicable, the objective is to have a Finnish decision on custody recognised and enforced in the State concerned. The aim of the enforcement is to return the child by coercive means to its lawful custodian.
However, Finnish decisions on custody and right of access cannot without special measures be enforced in a foreign state. The enforcement of a decision in a foreign state normally requires the existence of an international convention on the subject.
In matters regarding recognition and enforcement of Finnish custody decisions in another European Union Member State the so-called Brussels II a Regulation (EC No 2201/2003) shall be applied. Another important international convention is the so-called Luxembourg Convention, that is the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of children, where the Contracting States undertake under certain conditions to recognise and enforce decisions given in other Contracting States. Due to special arrangements between the Nordic countries Finnish decisions on child custody and right of access are, as a rule, enforced in Sweden, Norway and Denmark in accordance with the Convention on Recognition and Enforcement of Nordic Decisions in the field of Civil Law (Treaty Series 56/1977).
In certain cases it may be possible for a Finnish decision to be declared enforceable in some state solely on the grounds of the national legislation of the state in question.
If a decision cannot be enforced in a foreign state, a new trial on the custody and right of access to the child may have to be initiated.
If a decision on custody or right of access has been issued in another Nordic country it can be enforced without assertion of its enforceability in Finland. The application for enforcement shall be addressed to the District Court in whose territory the child or the adversary of the applicant is resident.
If a decision has been issued somewhere else than in the Nordic countries, the district court or Helsinki Court of Appeal must, on request, assert its enforceability in Finland.
The leading principle in the Finnish provisions regulating the recognition and enforcement of foreign decisions on custody and right of access is to adopt an accepting attitude to foreign decisions. They are, as a rule, recognized and enforced in Finland. However, if a decision is evidently contrary to the best interest of the child or if the proceedings have been obviously inappropriate, the decision can be set aside on the grounds for denial of recognition and enforcement provided by the Convention.