The parties to the dispute cohabited for several years and from this relationship have a minor child. Following the breakdown of their cohabitation, the child has lived with the mother. During this period, a protection order was issued in favor of the mother due to allegations of violence by the father. The mother filed a petition with the court seeking the determination of the exercise of parental responsibility and the placement of the child under her care. The matter was brought before the court for resolution.
- The First Instance Court assigned the child to the mother for upbringing and education, recognizing the father’s right to periodic visitation and also established a maintenance obligation in favor of the child.
- The Court of Appeal upheld custody for the mother and restricted the father’s visitation rights to a lower frequency, considering that the child needed stability and a calm emotional environment due to their young age.
- The father filed an appeal with the Supreme Court, contesting the restriction of visitation rights as unjustified and incompatible with the best interest of the child.
Reasoning of the Supreme Court
The Supreme Court presented the following points regarding the decisions made by the other courts:
- Non-compliance with the Convention on the Rights of the Child
Article 9 of the Convention guarantees the child’s right to maintain regular contact with both parents, except in cases where there are serious grounds for restriction—which were not proven in this case.
- Lack of sufficient reasoning
The previous courts did not provide in-depth and evidence-based reasoning as to why the restriction of the father’s contacts was necessary in relation to the child’s best interest.
- The right to family life – Article 8 of the ECHR
Cohabitation relationships outside of marriage also constitute “family life” that deserves protection. Parents have the right to maintain emotional and personal relationships with their children.
- The principle of the best interest of the child
The best interest of the child is not measured solely in terms of custody, but also includes the stable involvement of both parents in the child’s life. The decision-making process must result from a comprehensive and well-reasoned analysis of every factor that affects the child’s well-being and development.
The Supreme Court decided to overturn the decision of the Court of Appeal and return the case for reconsideration to the Court of Appeal of General Jurisdiction, with the aim of reassessing the right to visitation in accordance with the principle of the best interest of the child and the right to family life.
