Can I impose a penalty if my ex refuses to release the children?
Unfortunately, it often happens that a parent refuses to release their children to the other parent, despite an existing court order or agreed-upon custody or visitation arrangement. Various reasons are cited in such situations: the child may be ill, unwilling to go, or the circumstances may be deemed unsuitable. In any case, systematically preventing contact between a child and their other parent is contrary to the child's best interests, which, in principle, benefits from maintaining a bond with both parents.
You may be wondering whether you can impose a penalty to compel your ex-partner to comply with the arrangement. The answer is: yes.
The law explicitly provides for the imposition of a penalty if a party fails to comply with a court order (Article 1385bis of the Judicial Code).
In practice, imposing a financial penalty often proves effective: the prospect of financial consequences motivates some parents to comply with the imposed arrangement.
But what exactly are the conditions for imposing a penalty for violating visitation rights? We explain further in this Wanted Fact.
What is a penalty payment?
A penalty is an additional order imposed by the court on a party (the debtor) to encourage them to comply with a previous order or obligation. The penalty consists of a sum of money that the convicted party must pay each time they fail to comply (timely) with their principal order.
The penalty is separate from the compensation and is therefore not intended as compensation for damages, but simply as a means of coercion to enforce compliance.
The court determines the amount of the penalty based on the specific circumstances of the case. It must be high enough to have a deterrent effect, and at the same time, the court must precisely describe its application, specifying:
- The action to which the penalty relates;
- The frequency (per day, per violation, etc.);
- A possible ceiling to avoid excessive financial consequences.
In practice, a penalty usually ranges between €100.00 and €250.00 per violation or per day of delay.
A penalty payment doesn't necessarily have to be issued at the same time as the main judgment. You can also request the court to impose a penalty payment afterward if your ex-partner fails to comply with the existing court order.
In family law cases, the procedure is also easily accessible thanks to the family court's principle of permanent saisine. You can bring the case to court with a simple petition, without having to initiate entirely new proceedings.
The penalty applied as a sanction for refusing access rights
If a parent refuses to comply with the judicially established residence arrangement or visitation rights, the other parent can invoke Article 387ter of the former Civil Code. This article allows the judge to impose a penalty payment to enforce compliance with visitation or residence decisions.
As mentioned previously, you can ask the judge to impose the penalty payment together with the principal judgment. However, this can also be done later, for example, if it appears that the other parent is not complying voluntarily with the imposed arrangement.
The enforcement of the penalty payment falls within the scope of Article 1412 of the Judicial Code. This means that the same super-privilege applies to the penalty payment as to alimony payments. As the creditor of the penalty payment, you can therefore have the other parent's income seized without applying the usual seizure protection (such as the protected portion of wages or replacement income). Unlike regular debts, the penalty payment enjoys a particularly privileged position here.
Moreover, the judicial decision imposing the penalty payment is, in principle, "provisionally enforceable." This means that the decision is immediately enforceable, even if the ruling has been appealed or is not yet final.
Although a penalty payment does not offer an absolute guarantee that your ex-partner will comply with the settlement, experience shows that this financial incentive often has the necessary effect to enforce compliance.
Does your ex-partner refuse to give up the children?
Are you a parent and your ex-partner isn't adhering to the visitation agreement? Would you like more information on this topic? Don't hesitate to contact us for a free consultation. We're happy to help.