The War of the Roses in Czech Republic10/09/17  |  Articles  |  Family law

Are you a mother and a foreigner? You do not want to lose your child. Will you be trapped in the Czech Republic until your child is 18 years old?

Are you a mother and a foreigner? You do not want to lose your child. Will you be trapped in the Czech Republic until your child is 18 years old?

Imagine this situation, you are a foreigner and you fall in love with a Czech man and you have a child with him. Your partner talks you into living in the Czech Republic, where the delivery and health care is free, kindergarten costs almost nothing and living expenses are cheaper. The agreement is that after your child grows a little, you will move back to your home country where you met and where you conceived your child. Or there is another common option, you come to the Czech Republic to study for a PhD, which is not very expensive or to work here temporarily. Another variant is that you move temporarily to the Czech Republic due to your partner’s parents’ health.

Or you could imagine a scenario where both partners are foreigners, they came to the Czech Republic because of the work of one of them. They are so-called expats. After a while, something goes wrong in the relationship, often another Czech woman or man is involved, and the relationship ends. The one who came to the Czech Republic and started a new relationship with a Czech does not want to leave and the argumentation of habitual residence starts. The child goes to an English school or German kindergarten, but the parents start arguing that they have a strong connection to the Czech Republic, as if the fact that their child does not even speak Czech was not important. Of course, the partner’s Czech lover can teach him the Czech language and he or she will quickly adapt, but the child’s roots do not matter anymore.

When something goes wrong and the relationship ended, the foreign parent often wants to quit the Czech Republic as the conditions why they came here – build a family – changed. Their Czech partner often ignores this wish and in the “best interest of the child” which actually means in the best interest if the parent, they forget about the promises they made about going back to the home country of their foreign partner, let alone the reasons why they came to live in the Czech Republic.

The first step of the Czech parent is to obtain an interim order to prohibit travelling abroad with the child without the other parent‘s permission until the custody agreement comes into force. Usually, the courts comply with this proposition to prevent some irreversible consequences of the parents’ actions. One message or email of the foreign parents saying that they want the child to study at a school abroad or that they want to live in their home country, is enough to be considered as preparation for abduction of the child. Even though the countries are parties to the Hague Convention onthe Civil Aspects of International Child Abduction and the International Private Law, the courts consider that it is important to protect children from their potential abduction from the Czech environment.

However, the form of an interim order is so extensive, that it restricts any kind of travelling – vacation, funerals, visitation of friends, but also the possibility to build conditions for the future life of the children in the home country of their parent, which is important for the courts to decide. Therefore, one parent is disadvantaged in the possibility to build an environment for the child as the other parent (the Czech one) does. And regarding the length of such cases, an interim order can be valid for years. Getting permission to travel is very difficult as the other partner may obstruct it, and it is sometimes possible only through an interim order and through requests to the court with the need to show documents such as the wedding invitation of the parent’s sister abroad, a death notice or airplane tickets with concrete dates and all of this translated to Czech.

The restriction of travelling is one of the first shocks for the foreign parent, as it is not only a restriction of freedom, but it puts them before a„Sophie's Choice” – imagine that you have to choose between staying with your parents who are abroad and dying of cancer for several weeks, but the court allows the child to travel only for one week. So you have to choose between seeing your parents that you may never see again and leaving your child, that you gave birth to, that you raised and he or she cannot fall asleep without you (until the court sends the child to the father and the child pees himself at night).

Another shock is the lengthy court proceedings, where the court can order the child to go to Czech schools or kindergartens, when the child was visiting only international institutions up until now, but after the divorce, the Czech parent does not want to pay school fees anymore. What does this mean? Another reason for the children to live in the Czech Republic. The foreign parent cannot build a family environment in any of the two countries, as in the Czech Republic they often do not have the means and let’s be honest, translating into Czech or teaching a foreign language freelance does not make a living, especially after maternity leave. In the home country, the parent’s employer cannot save their position for several months until the Czech court decides. This is another form of discrimination – financial.

The development of a court proceeding is different every time, whether it is the judges approach, or according to the age of the child, specific conditions of the family, the effort to reach agreement between the parents or the experts role in decision making. Unfortunately, sometimes the judges want to wait for the child to express their wish and to decide, so the mother has to stay, or leave the country without her child who will be even more under the influence of the parent who has custody and will refuse to travel. The result is that the mothers choose to stay in the Czech Republic and wait, maybe until their child is 18, which is contrary to Article 8 of the European convention of human rights – right to respect for private and family life.

What you can do before moving to the Czech Republic

Before making the decision to move to the Czech Republic, for a short or long period of time, make an agreement with your partner, where you will write down the reasons you will be living in the Czech Republic and under what conditions. An agreement like this is enforceable only morally, but it can serve as evidence and guide for the court to find out the motivations of the parties to move to the Czech Republic, concluding their marriage, and having children. It could also serve as guidelines to find out the reasons for the divorce, if the agreement was breached and if this is the reason one of the parties filed for divorce. If it is not possible to insist on previous plans of the family in the time parents were still together, it is equally not possible to insist on the wish of one of them to raise children together as if the relationship has not been broken. It is not possible to put women into material need saying that a man has a job in the Czech Republic, a woman can also find "one".

What to prepare for the court

If you start court proceedings, prepare evidence to support that:

  • even though you now live in the Czech Republic, you want to raise your child in another country 
  • how was the custody up until now and that you had primary custody
  • you have created an environment in your home country 
  • show your strong connection to your home country
  • show where your child has a bigger family
  • what is the share of both parents on maintaining the household and family by financial support but also regarding care and free time
  • the involvement of your child in the social life in the Czech Republic and in your home country
  • what is the age of your child? Show that at this age, a child is more connected to the mother
  • is the Czech Republic a long-term residence of the parents or just a transit place
  • what is the reason of the break-up – domestic violence, drugs, cheating, financial usurpation
  • what is the language the child and the parents use together
  • how did the child spend holidays and free time up until now
  • what is the child’s identity and preference (if the child is not too young)
  • what is the impact of the fact that the mother is unhappy and in a bad financial situation and tired of traveling on the child
  • what is the health condition of the mother – for example, can her home country provide for better medical care or can her family help her with overcoming the disease
  • does the mother have a new family (children)
  • do the mutual disagreements between parents about custody have a negative impact on the child’s mental health, is the current custody regime in the best interest of the child
  • does the father have an opportunity to work in the mother’s home country (why the father does not want to work there anymore to the detriment of the mother’s career who now has to work as a English teacher in the Czech Republic)
  • is cross-border shared custody possible regarding the distance, finances, and age of the child)

Then you can only hope that the court will decide based on reason, preferably in less than two years and especially, that the court will be compassionate and will think about what the mothers trapped in a foreign country go through. This conclusion is not gender neutral, but it is not possible to omit the fact that women give birth to children, breast feed them, care for them and have a very strong emotional bond with them. Not that the fathers would be happy about their ex-partner taking their child abroad, they have the same rights regarding the child, but you cannot split children in half. Everyone should listen to the words from the dissent to this ruling of the Constitutional court n° III. ÚS 149/20 from the day 31.3.2020 I believe that children need the love and care of both parents. Nevertheless, I think that a temporarily quietened ego of one of them is not worth the damage, that, in this situation, could cause the unsensitively determined shared custody to the child’s mental health.”

Regarding the specific conclusions of case law in respect of these cases – technically it is a matter of approval of the relocation of the minor child and of determination of the custody regime and maintenance. Find below a some of the court judgments in cases like this.

  • Judgment of the Municipal court in Prague n°12 Co 164/2019-823 from 27.8.2019

Fact of the case: both parents are foreigners, two little minor children 

  • Ruling of the Constitutional court III. ÚS 149/20 from 31.3.2020 

Fact of the case: both parents are foreigners, 3-year-old minor child

According to the Constitutional court the Municipal court should have explained, why it does not consider shared custody between Germany and the Czech Republic with a 600km distance as suitable for the child’s interest, as pointing out the distance is not sufficient enough when determining custody for such a small child.

  • Ruling of the Constitutional court III. ÚS 188/18 from 3.4.2018 

Fact of the case: both parents of Czech nationality, change of residence within the Czech Republic, the possibility of the custodial parent to change the place of residence according to the changes in life (the possibility to afford housing, medical reasons, possibilities of work, of moving)

In addition, rulings I. ÚS 1554/14, I. ÚS 2482/13

No extended family on both sides, mother’s efforts for cross-border shared custody, the child only speaks German

  • Custody proceedings under n°9 P 143/2012 at the District court for Prague 7

Facts of the case: foreign mother, Czech father, efforts of the mother for a cross-border custody, length of proceedings: 5 years

JUDr. Eva Ondřejová, LL.M., PhD.

Attorney at law