Á vefnum http://www2.telegraaf.nl/buitenland/article49466791.ece má lesa um þetta. Ensk þýðing á fréttinni er:

Tues 5 Sept 16:53
[Translated into English]

Brussels – In Belgium children will not be going automatically to their
mother after divorce. In principle parents will share them: the children
will stay just as long with the father as their mother.

This so-called co-parenting becomes the preference in separation cases. A
law declaring this was published on Tuesday in the Belgische Staatsblad
newspaper.

This law has many critics. The Steunpunt Blijvend Ouderschap (support group
for parents) said to VRT that this will create schizophrenic children
because they will need to keep adapting to both parents. Nearly a quarter of
Belgian children come from a divorced family.

 
Þýðing á hluta af lögunum er hjálögð og gerð af Pieter Tromp.

Well-being of the child

Press bulletin of the Belgian Council of Ministers; (2004-12-03)

 

On proposal of Ms Laurette Onkelinx, the Belgian minister of justice, the Belgian Council of Ministers inspected the preliminary draft of law well that strives for the evenly divided preservation of the child at separation of the parents, and to reglementering of the obliged implementation concerning preservation of the child. Also the designs of Royal Decrees which are necessary for the coming into force of increase of the ceilings for, were approved seizure when the debtor has one or more children at account.

 

The preservation of the child at separation: evolution of the practices.

Up to a year or fifteen hoofdzakelijke the preservation of the child it was suffered, unless entrusted at exception, to the mother, with a bezoekrecht for the father, generally one weekend on two, sometimes on Wednesday and during half of the school holidays.

Nowadays is everyone concerning once it there that both parents must be involved in the education of the child. This principle, confirmed by the Treaty of the United Nations of 1991 concerning the rights of the child, formed the basis of the law of 13 April 1995 concerning the common exercise of the parental authority.

Since 1995 judges have more and more accepted the principle of the shared or beurtelingse preservation (*). Current case law thinks however that the shared preservation is only possible when both parties are about that agreed, and this since this solution can be only operative when the parents concerning the modalities of the preservation correspond.

This is a large step forward: up to for some years certain courts refused plain the evenly divided preservation, even apply when the parents were agreed.

At present at separation it is case by case examined what happens there with the preservation of the children. This practice makes that the outcome of a process very uncertain is, what then leads to opstapeling of legal actions: everyone frequently ventures its chance and is it the most intransigent parent who gets right.

Unforeseeable result of a process is still reinforced by the fact that each judge speaks to the point its own sensitivity late. One can speak of a model by right.

The importance of the balance of the children

The shared preservation is not of course at each situation the ideal solution. But when a separation is inevitable, it is important that there a good understanding exists between the best formula encouraging the understanding between the parents. For a child is nothing more devastating than a painful process that father and conduct mother against each other.

In fact the decision concerning the preservation of the child is frequently taken as squat measure at the beginning of the separation. The judge is then obliges on the basis of partial elements (judge certificates, warrants of the police force concerning isolated occur, attitude of the parties during the meeting…).

The judge frequently pronounces a provisional sentence, awaiting a research measure (social research, expertise…), but the first decision becomes, exceptions apart from, generally also definite. Information which becomes afterwards is obtained indeed frequently insufficient the situation such as which in the course of the time developed again is possible himself questioning.

An important majority of the group family and civil judicial rights that of November 2003 up to March 2004 met within the framework of Staten-generaal of the family, pleaded for introducing a legal model which obliges the judge would have will follow if there are no other elements present.

In imitation of the term common exercise of the parental authority of the law of 13 April 1995, this model could be only egalitarian. It had recommend therefore an equal partitioning of the duration of the preservation between the parents, to promote a real shared parental responsibility this way.

A smooth model for shared preservation

The preliminary draft of law that minister Onkelinx presents a smooth model contains which favours the evenly divided preservation. This model the wish an agreement, will reach encourage since one might there deviate because of motivated reasons of.

The shared preservation the standard will therefore become, if the parental authority is exercised jointly. It will not apply when the court the parental authority assigns exclusively to one parent.

At common exercise of the parental authority the judge can adapt niettemin the preservation in function of particular situations (geographical disposal between the parents, onbeschikbaarheid, broeder- and zusterschap, very young age of the child…): in such case he its decision must motivate.

It the task will no longer be of the parent who requests shared preservation show the gegrondheid of it, but it to the parent who belongs to himself resisted to that prove there a counter-indication exists.

The minister wishes no enforcable impose model: the model for the evenly divided preservation would be generalised would have, but the formula will not be forced immediately, since the law to the courts preserves an important appraisal competence, in function of specific circumstances.

Simplification of the procedures

Moreover the design of the minister will modify the procedure rules which apply in the youth court in the field of the parental authority and the preservation:

– the opportunism of provisional measures will be underlined;
– by establishing her-evaluatie of the situation when the evenly divided preservation is not immediately ordered;
– by the setting-up of a mechanism so that one is no longer obliged a new procedure introduce if change the circumstances: the deposit of conclusions or of a written request at the graft it will make the judge possible the matter to reconsider, in order to modify a formerly taken decision possibly.

Which solution when aren’t the decisions of the judge respected?

For such a case the law provides possibilities at present two:

– the parent who is the victim can lodge a criminal complaint: since the condemnation will be pronounced just several months afterwards, can for some parents the relation with their child be seriously disturbed or loses them even each contact with the child. Moreover this situation can be very detrimental for the child himself;

– the judge can impose a penalty payment: those are not possible however effective appear if the insubordinate party is poor.

When the legal decisions are not carried out in the field of the preservation, stands the victim hurries himself impotently.
We must take into account suffering the parent who it with difficulty to do have respected its rights and with the importance the child of loving contact with both parents.

From respect for the child must be acted there however circumspectly. In that sense the preliminary draft of law two puts concrete solutions for:

– after determination of the summary offence the judge can examine the situation again and if necessary appeal to coercive measures. In that framework he can charge the Court bailiff with the obliged withdrawal of the child. He will be accompanied by a competent person, so that the obliged withdrawal of the child in good circumstances goes for the child concerned.

– might be collected the penalty payment in the form of seizure-nasty on remunerations or the social benefits, such as that the case has been provided at alimony, and such as for Article 1412 of the judicial statute book. That last will therefore be modified, so that it becomes possible that the seizure is not extended to the condemnations to to pay of a penalty payment in case of observing the appointments concerning the preservation.

One can indeed be of the opinion that observing the appointments concerning the preservation is not exactly as serious as not paying alimony money. Because both cases are criminally punished, it is therefore essential that the financial sanctions which result just as efficient are.

Coming into force of the increase of the thresholds of onvatbaarheid for seizure

In case of seizure-nasty, Article 1409 provides with the judicial statute book that a certain sum money must continue exist available with dignity to insure to the debtor.

At present only seizure can be laid on these sums, when the debtor does not pay the alimony money. This exception will be extended: also the amount of the penalty payments which cannot be imposed in case of observing concerning the appointments of the preservation.

(*) one there already prefers the expression shared preservation, because when the parents have separated and the child itself now once at the one and then at the other parent breaks down, is talk of beurtelingse preservation; the shared preservation keeps moreover in that the parents spend as much time with their children.

 
drs. Pieter A.N. Tromp
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