1. Meaning of the term “parental custody” in practice; Rights and obligations of the guardianFrom a terminological point of view, the term “parental authority” is more commonly used in the Grand Duchy of Luxembourg than “parental custody”. This refers to the entirety of the rights and obligations that parents are responsible for under the law with regard to the personal and financial care of their minor and underage children in order to fulfill their own protective, upbringing, training and maintenance tasks to be able to. Parental authority belongs to the parents so that they can protect the child's physical, mental, emotional and moral well-being. You have the right and obligation towards him to supervise, look after, educate and train him. Parental authority is not an absolute right and is left to the parents' free discretion. Parental authority must be based on the well-being of the child. 2. Who is usually responsible for parental responsibility for a child?During marriage, the general rule applies that father and mother exercise parental authority jointly. If the parents are not married, the mother generally exercises parental authority. 3. Can another person be appointed to exercise custody in place of the parents if they are either unable or unwilling to properly exercise parental responsibility for their child?If the parents die or are unable to care for their children, guardianship must be appointed. The last parent to die can choose the guardian. If this has not been done, the family council or, failing that, the guardianship court will appoint the guardian. 4. How are the modalities for exercising future parental responsibility regulated if the parents divorce or live separately?In the event of an amicable divorce, the parents can agree to share parental responsibility. In all other divorce proceedings, parental authority is exercised by the parent to whom the family court awards custody. Except in exceptional and serious circumstances, Luxembourg courts often award custody to the mother, especially when it comes to a small child. The non-custodial parent has visitation and supervision rights. If personal custody has been transferred to a third party, the other characteristics of parental authority continue to be exercised by the father and mother. However, when appointing a third party as interim guardian, the court may decide that this third party must apply for the appointment of a guardian. 5. If the parents make a custody agreement, what formal requirements must be met in order for this agreement to be legally valid?An agreement between parents on a question of parental authority is only legally binding if approved by the competent court. 6. If the parents cannot agree on the issue of parental custody, what alternative options exist to resolve disputed issues without going to court?Parents can take advantage of family counseling. 7. If the parents go to the family court, what issues can the judge decide on in the best interests of the child?The court has jurisdiction over the following issues:
§ Maintenance for the child: maintenance depends on the needs of the child and the ability of both parents and must also be paid after the child reaches the age of majority if the child cannot support themselves. 8. If the family court decides that custody of the child is given to one parent alone, does this mean that this parent can make all decisions about the child's affairs alone and without consultation with the other parent?The custodial parent has an obligation to provide information to the non-custodial parent in that he must keep the latter informed about important decisions and significant facts for the child's development. Even if the non-custodial parent has a certain say in the care and upbringing of the child, this does not mean that he or she has the right to be informed about all the details of the child's life. If the non-custodial parent is of the opinion that the custodial parent is using his or her custody rights in such a way that this harms the well-being of the child, he or she can contact the competent court. In this case, the court is entitled to order a change in custody or to impose conditions on the parent with custody for the upbringing of the child. 9. If the family court decides that both parents have joint custody of the child, what are the practical consequences?If parental authority is exercised jointly by parents living apart, this undoubtedly requires a high degree of agreement and mutual cooperation in the interest of sustainable and constructive coordination in decisions regarding supervision, care and upbringing of the child. 10. At which court (or authority) can applications for custody be filed? Which formal requirements must be adhered to and which documents must be enclosed with the respective application?The guardianship court is responsible if the parents cannot agree on matters necessary for the well-being of the child, or if the legally appointed representatives who are required to act jointly cannot reach an agreement in the context of property custody. During the divorce or termination of marital cohabitation proceedings, the court that issued the interim order is generally responsible for the provisional regulation of custody. However, the measures ordered can be modified by the juvenile court if the physical, mental or spiritual well-being of the child, its upbringing and training or its social or moral development are at risk. In the event of a divorce or termination of the marital partnership, the family court concerned also decides on the question of parental custody. After a divorce or termination of marital cohabitation, the juvenile court can determine, modify or supplement custody rights. An action for the partial or complete transfer of parental authority must be filed with the district court responsible for the domicile or habitual residence of the minor child. The court shall obtain all relevant information and, in particular, order an examination of the minor's personality development, in particular by means of an examination of the social environment, medical, psychiatric and psychological assessment, behavioral observation or exploration of professional orientation. It hears the parent or guardian as well as the person who has taken in the child. It can also order any interim measures it deems appropriate for the care and upbringing of the child. An action for complete or partial deprivation of custody rights is brought by the public prosecutor's office at the civil district court responsible for the domicile or habitual residence of the father or mother. If the place of residence or habitual residence in the father's or mother's country of origin is not known, the action is brought before the district court responsible for the children's place of residence. If not all children are in the same judicial district, the action must be brought before the Luxembourg City District Court. The public prosecutor's office is conducting an investigation into the minor's family circumstances and the moral lifestyle of his parents. They will be asked to present any comments and objections to the court. In any case, the court may, of its own motion or at the request of the parties, order such interim measures as it deems appropriate for the best interests of the child. The court can also revoke or modify these measures in any case. 11. What procedure is used in these cases? Is there an expedited procedure?The filing of a lawsuit in the guardianship court is carried out through an application by the child's father or mother. The parties are not required to have a lawyer in court. With regard to applications for custody that are made as part of proceedings for divorce or annulment of marital cohabitation, reference is made to the comments on “ Divorce – Luxembourg ”, question 11. After a divorce or termination of marital cohabitation, the juvenile court can be appealed to through an informal application from a parent or the public prosecutor's office. The written application must be submitted informally and in four copies to the office of the juvenile court in the district in which the child has his or her usual residence. In addition to the facts on which the application is based, information about the parties' last names, first names, profession and place of residence must be provided. The applicant's chosen domicile in the Grand Duchy must also be stated if he does not have his place of residence there; otherwise the application is void. The parties are not required to have a lawyer in court. The action for the transfer of custody is brought by application. There is no obligation to have a lawyer in court. The application can also be addressed to the public prosecutor, who will then refer the matter to the court. The father, mother or guardian who wishes to regain the rights deprived of them must apply for this to the court in whose district the person to whom these rights were transferred has their domicile or habitual residence. The action for deprivation of custody rights must be filed through an application containing information on the relevant facts and the necessary evidence. The clerk registers the application and summons the parents or relatives against whom the action is directed. These are not required to have a lawyer in court. Father, mother or guardian who wishes to regain the rights deprived of them must apply for this to the court in whose district the person to whom these rights were transferred has their domicile or habitual residence. 12. Is there legal aid available to cover the costs of the proceedings?Legal aid can be granted to people whose income is considered insufficient under Luxembourg law. For this purpose, they must answer a questionnaire available from the Central Office of Social Administration and submit it to the president of the local bar association, who has the decision-making power. Legal aid covers all court, procedural and document costs for which it was granted. It includes in particular stamp and registration fees, office fees, lawyer's fees, bailiff's fees and costs, notary costs and fees, expert costs and fees, witness fees, translator and interpreter fees, costs of certificates about unwritten law, customs and customs in the country of origin, travel costs, Fees and costs for registration, mortgage and lien formalities as well as the costs for advertisements in daily newspapers. 13. Can custody decisions be appealed?An appeal against a family court decision regarding parental custody can be lodged with the Court of Appeal, Civil Division. The appeal period is generally forty days. However, the period of appeal against a decision issued as an interim order is only fourteen days. 14. If, under certain circumstances, it proves necessary to have a custody decision enforced by a court, which court should be called upon in such cases and which procedure should be followed?Luxembourg law provides two ways to address the systematic refusal to implement a court decision on custody: On the one hand, a civil law sanction is provided for, namely the civil law penalty, which consists in a court ordering the non-law-abiding parent to pay a certain amount of money, measured in days (or weeks or months) based on the extent of the delay, in order to induce him or her to do so To fulfill obligations in a meaningful and purposeful manner. The action is brought by way of service at the district court that has local jurisdiction for the child's place of residence. The parties are required to have a lawyer. On the other hand, criminal sanctions are envisaged. The criminal offense of child abduction carries a prison sentence of eight days to two years and/or a fine of between 251 and 2,000 euros. If the perpetrator has been completely or partially deprived of custody of the child, the prison sentence can be up to three years. The public prosecutor can either deal with the matter ex officio or be contacted by the person concerned through a criminal complaint. As the criminal chamber, the district court decides on the criminal sanctions and, if necessary, on the claims for damages to which the injured party is entitled. There is no obligation to have a lawyer in court. 15. What should be done to have a custody decision from a court of another Member State of the European Union recognized and enforced in Luxembourg? What procedure must be followed?Pursuant to Regulation (EC) No 2201/2003 of 27 November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in proceedings concerning parental responsibility for the children of spouses (hereinafter “Brussels II Regulation”) ), the decision of a court of another Member State of the European Union on parental custody in the Grand Duchy is recognized by operation of law. This means that the recognition of such a decision is not subject to any additional procedure. However, the decision of a court of another Member State of the European Union on the exercise of custody of a common child of the parties, which is final, pronounced and served there, will also be enforced in the Grand Duchy after being made at the request of one of the parties involved was declared enforceable. The declaration of enforceability must be applied for by a lawyer to the President of the District Court. Appeals to the Cour d'appel (Court of Appeal) are permitted against the decision of the President of the District Court. A cassation appeal can be lodged against the decision of the appeal court. 16. Which court should be used to challenge the recognition in Luxembourg of a custody decision made by a court of another Member State of the European Union? What procedure must be followed?Due to the “Brussels II Regulation”, all parties involved can apply to the President of the District Court for a decision on the non-recognition of the court decision made by a court of another Member State of the European Union regarding parental custody. A lawyer is required for this legal act. The application can only be rejected for the following reasons:
Any party may appeal the decision of the President of the District Court to the Cour d'appel (Court of Appeal). The cassation appeal against the decision of the appeal court is admissible. 17. What law does the family court apply in custody proceedings if the child or the parties do not reside in Luxembourg or if they have different nationalities?
It is generally recognized in case law that after the parents divorce, the law applicable to the divorce must be applied, ie the national law that applies jointly to spouses if they have the same nationality; the right of spouses to have a de facto common place of residence if they have different nationalities; Luxembourg law if the spouses have different nationalities and do not actually have a common residence. In any case, the concurrent jurisdiction of the law of the place of jurisdiction applies, ie Luxembourg law in its capacity as public police, security and public order law. Further information
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