A court does not grant a divorce until it has decided on the post-divorce arrangements for a child the spouses have had together who is a minor and does not have legal capacity. The court may reach its decision on this by approving an agreement that has been made between the spouses. If the method agreed for parental responsibility is manifestly contrary to the child’s interests, rather than approve that agreement the court takes a decision on its own. In this case, the court first determines, by taking into account the interests of the child, how each of the parents will look after the child in the future. The court considers the child’s relationship not only with each of the parents, but also with siblings and, where appropriate, grandparents.
The court may award sole custody, joint custody, or informal shared custody. If a child is to be placed in informal shared custody, this requires the agreement of the parents.
When taking a custody decision, the court considers the child’s personality, in particular their talents and abilities measured against the opportunities for development and the circumstances in which the parents live, the child’s emotional orientation and background, the parenting skills of each of the parents, the existing and expected stability of the environment in which the child is to be brought up, and the child’s emotional ties to siblings, grandparents and, where appropriate, other relatives and unrelated individuals. The court also takes into account which of the parents has been duly looking after the child and seeing to their emotional, intellectual and moral upbringing to date, and which of the parents offers the child the best prospects for healthy and successful development. In doing so, the court does not lose sight of the child’s right to be cared for by, and to be in regular personal contact with, both parents, as well as the rights of the spouse who has not been granted custody to regular information about the child, and the parents’ ability to agree on how to bring up their child.
In these proceedings, the child is represented by a guardian ad litem to ensure that their interests are duly protected. The court usually appoints a child protection agency to be the guardian ad litem.