Custody matters
This tab contains the most important information about parental responsibility, foster care, as well as the actions taken by the guardianship court. The sections on the right-hand side address frequently asked questions.
PARENTAL RESPONSIBILITY
The Polish Family and Guardianship Code does not define the term ‘parental responsibility’. In Polish case law and legal literature, the term ‘parental responsibility’ encompasses a set of parents’ obligations and rights that they have in relation to a child, in order to exercise custody over the child and child’s property properly.
As a rule, parental responsibility is vested in both parents. If one of the parents is deceased or does not have full legal capacity, parental responsibility is vested in the other parent. The same applies if one parent has been deprived of his or her parental responsibility or if his or her parental responsibility has been suspended.
Furthermore, the parental responsibility of a parent may be limited by a court decision. The other parent is then entitled to exercise parental responsibility for the child on his or her own to the extent specified in the court decision.
FOSTER CARE
If parents are unable to exercise parental responsibility, they may ask the guardianship court or another public authority to provide foster care for their child. In urgent cases, at the request or with the consent of the child’s parents, the child may be placed in foster care, on the basis of an agreement concluded between the district governor and the foster family or a family-type children’s home.
If parents do not wish to exercise parental responsibility for their child, they can give their consent for the child to be adopted. Polish law provides for three types of adoption: full, complete, and incomplete adoption.
If parents exercising parental responsibility for a child endanger his or her best interests, their parental responsibility may be restricted by a decision of the guardianship court and the child may be placed in a foster family, in a family-type children’s home, in institutional foster care, in a care and treatment facility, in a nursing and care facility, or in a therapeutic rehabilitation facility.
PARENTAL RESPONSIBILITY IN CASES OF DIVORCE / SEPARATION
When issuing a judgment concerning divorce, separation or marriage annulment, a court is required rule on parental responsibility unless it has no jurisdiction to rule on parental responsibility in the case in question. When ruling on parental responsibility, a Polish court may take into account a written agreement between the spouses on how to exercise parental responsibility if it is consistent with the best interests of the child.
Where the parents cannot reach an agreement, the court has the following options, taking into account the child’s right to be raised by both parents:
1) to rule that parental responsibility is to be exercised jointly;
2) grant parental responsibility to one parent, limiting the parental responsibility of the other parent to certain obligations and rights in relation to the child.
The parents may also conclude an agreement on parental responsibility.
The law does not require a particular form for this agreement. An agreement between parents concerning the exercise of parental responsibility does not have legal consequences, and can only serve as a basis for a court decision in this regard.
If the parents are struggling to reach an agreement on the exercise of parental responsibility, they can seek the assistance of a mediator. Mediation is conducted on the basis of a mediation agreement or a court order requesting the parents to conduct mediation. The agreement may also be concluded if a parent consents to mediation upon request of the other parent. However, a settlement concluded before a mediator (in writing, signed by both parties and the mediator) does not have the legal force of a court settlement until it has been approved by the court.
GUARDIANSHIP COURT DECISIONS ON MATTERS RELATING TO THE EXERCISE OF PARENTAL RESPONSIBILITY
Parents can turn to a guardianship court in Poland in various matters concerning their parental responsibility for their child, for example:
1) determining how to exercise parental responsibility and access to a child when the parents are separated and both have parental responsibility;
2) resolving a dispute concerning the important matters related to the child, when the parents cannot agree on how to handle these matters, e.g. determining the child’s place of residence, choosing a school, choosing a first and last name, deciding on treatment, travel abroad, etc.
3) acts in law between a child and a parent, an act in law exceeding the ordinary management of a child’s property.
Granting parents joint exercise of parental responsibility means that they can and must exercise the same rights and obligations towards the child. This means, among other things, that important matters concerning the child will have to be decided jointly by the parents and, if they cannot reach an agreement, the guardianship court will decide.
Where a court grants parental responsibility to only one parent, that parent may, without consulting and agreement with the other parent, make decisions on their own in all matters concerning the child.
A guardianship court may deprive a parent of parental responsibility where parental responsibility cannot be exercised due to a permanent impediment if the parent abuses parental responsibility or grossly neglects his or her obligations towards the child.
DETERMINATION OF THE COMPETENT COURT AND PROCEDURE
Matters concerning parental responsibility fall under the jurisdiction of district courts – departments of family and juvenile matters (guardianship court), competent for the child’s place of residence. If there is no such basis, the District Court for the City of Warsaw is competent.
A child’s birth certificate, the parents’ marriage certificate (if married), and other documents supporting the application, e.g. medical certificates, school certificates, opinions provided by school counsellors, etc. should be enclosed with the application.
Parental responsibility matters are dealt with in a so-called non-litigious procedure, less formal than the trial procedure.
In addition, at the request of a party to the proceedings, the guardianship court may grant an injunction in the manner it considers appropriate under the circumstances. Decisions in this respect are effective and enforceable as soon as they are rendered.
We recommend the video prepared by the European e-Justice portal (available below)