The residence arrangement
The residence arrangement is the arrangement of the residence of minor children in case the parents do not live together. The residence arrangement ensures that each parent can exercise their right to personal contact. The residence arrangement can be made amicably, or imposed by the family court.
There is a residence arrangement only if the parents exercise joint parental authority. If one of the parents exercises exclusive parental authority, the other parent will retain its right to personal contact in the form of a visitation arrangement determined by the family court if the parents fail to do so between themselves.
The residence arrangement in case of joint custody exercise
If the parents do not reach an agreement, the family court will always determine the residence arrangement when it has to rule on the exercise of parental authority.
If the parents jointly exercise custody of the minor's person and management of property, the family court must also provide a residence arrangement. The family court determines where the child will be registered in the population register and thus have his or her main residence, and determines when the child will reside with one parent and the other.
The visiting arrangement in the event of exclusive exercise of parental authority
Even if the family court were to decide to award one parent the exclusive exercise of parental authority (over the person and the management of property), the family court must determine the right to personal contact of the parent who does not exercise authority. This is then no longer a residence arrangement, but a visitation arrangement.
Residence co-parenting
As a priority, the family court should examine residence co-parenting. Residence co-parenting means evenly divided residence in the sense that the child resides in an even manner with one parent and with the other parent. The court is obliged to investigate only if at least one of the parents requests it and only in the case of joint custody. The court cannot impose an equal stay if neither parent requests it. In addition, the judge is in no case obliged to effectively impose an equal residence even if there are no counter-indications.
The judge may rule that residence co-parenting is not an appropriate arrangement. In that case, he will grant primary residence with one parent and secondary residence with the other (art. 374, § 2, third paragraph old Civil Code). This means that the child will not spend the same amount of time with each of its parents. The secondary residence rule of a weekend every fortnight is an application of this.
The judge must always give special reasons for his decision on residence co-parenting or unequal residence (art. 374, § 2, fourth paragraph old Civil Code). He can take several criteria into account. He must mainly take into account the best interests of the child and the best interests of the parents.
The minor also has the right to be heard. The judge will take his opinion into account in accordance with his age.
The components of parental authority
Parental duty to support the child