1. Meaning of the term “parental care” in practice; rights and obligations of the person with parental responsibilityFrom a terminological point of view, the term "parental authority" is more common in the Grand Duchy of Luxembourg than "parental care." This refers to the entirety of rights and obligations that parents have under the law with regard to the personal and financial care of their minor children, in order to fulfill their essential protective, educational, and maintenance responsibilities. Parental authority is granted to parents so that they can protect their child's physical, mental, emotional, and moral well-being. They have the right and the duty to supervise, care for, raise, and educate their child. Parental authority is not an absolute right left to the parents' discretion. Parental authority must be guided by the best interests of the child. 2. Who is usually responsible for the parental care of a child?During marriage, the general rule is that both the 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 parental responsibility 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, a guardian must be appointed. The last surviving parent can choose the guardian. If this has not been done, the family council, or in its absence, the guardianship court, appoints the guardian. 4. How will the modalities of exercising parental custody be regulated for the future if the parents divorce or live separately?In the case of an uncontested divorce, the parents can agree to share custody. In all other divorce proceedings, parental authority is exercised by the parent to whom the family court grants custody. Except in exceptional and serious circumstances, Luxembourg courts often grant custody to the mother, especially when the child is a young child. The non-custodial parent has visitation and supervision rights. If parental custody has been transferred to a third party, the other aspects of parental authority continue to be exercised by the father and mother. However, when appointing a third party as temporary guardian, the court may decide that this third party must apply for the appointment of a legal guardian. 5. If the parents enter into a custody agreement, what formal requirements must be met for this agreement to be legally valid?An agreement between parents regarding a matter of parental authority is only legally binding if it is 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 involving the courts?Parents can seek family counseling. 7. If the parents appeal to the family court, on which matters can the judge decide in the best interests of the child?The court is responsible for the following questions:
§ Child support: Child support is determined according to the needs of the child and the ability of both parents to pay, and must continue to be paid even 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 transferred to one parent alone, does this automatically mean that this parent can make all decisions about the child's affairs alone and without consulting the other parent?The parent with custody has a duty to inform the non-custodial parent, insofar as they must keep the latter up-to-date on important decisions and significant events affecting the child's development. Even though the non-custodial parent has a certain right to be involved in the care and upbringing of the child, this does not entitle them to be informed about every detail of the child's life. If the non-custodial parent believes that the custodial parent is exercising their parental rights in a way that is detrimental to the child's welfare, they can appeal to the competent court. In this case, the court is authorized to order a change of custody or to impose conditions on the custodial parent regarding the child's upbringing. 9. If the family court decides that both parents share custody of the child, what are the practical consequences?When parental authority is exercised jointly by separated parents, this undoubtedly requires a high degree of agreement and mutual cooperation in the interest of sustainable and constructive coordination in decisions concerning the supervision, care and upbringing of the child. 10. At which court (or authority) can applications for custody be filed? What formal requirements must be met and which documents must be attached to the respective application?The guardianship court has jurisdiction if the parents cannot agree on matters necessary for the child's welfare, or if the legally appointed representatives, who are required to act jointly, cannot reach an agreement regarding the management of the child's assets. During divorce or dissolution proceedings, the court that issued the temporary order is generally responsible for the provisional arrangements regarding child custody. However, the juvenile court can modify the measures ordered if the child's physical, mental, or emotional well-being, upbringing and education, or social or moral development are at risk. In the case of divorce or dissolution, the family court handling the case also decides on the issue of parental custody. After a divorce or dissolution, the juvenile court can determine, modify, or supplement the custody arrangements. An action for the partial or complete transfer of parental authority must be filed with the district court having jurisdiction over the residence or habitual abode of the minor child. The court will obtain all relevant information and, in particular, order an examination of the minor's personality development, primarily by examining the social environment, conducting medical, psychiatric, and psychological assessments, observing behavior, or exploring the child's career aspirations. It will hear from the parents or legal guardian, as well as the person who has taken the child into their care. Furthermore, it may order any temporary measures it deems appropriate for the child's care and upbringing. An action for the complete or partial termination of parental rights is brought by the Public Prosecutor's Office before the district court of civil jurisdiction responsible for the domicile or habitual residence of the father or mother. If the domicile or habitual residence in the father's or mother's country of origin is unknown, the action is brought before the district court responsible for the children's place of residence. If not all children reside in the same judicial district, the action is brought before the District Court of Luxembourg City. The Public Prosecutor's Office initiates an investigation into the family circumstances of the minor and the moral conduct of the parents. The parents are requested to submit any observations and objections to the court. In any case, the court may, either on its own initiative or at the request of the parties, order such interim measures as it deems appropriate for the child's welfare. Likewise, the court may revoke or modify such measures in any case. 11. Which procedure applies in these cases? Is there an expedited procedure?A lawsuit before the guardianship court is filed by application from the child's father or mother. Legal representation is not mandatory for either party in court. With regard to custody applications made in the context of divorce or dissolution proceedings, reference is made to the comments on the topic “Divorce – Luxembourg”, question 11. Following a divorce or dissolution of the marital union, the juvenile court can be petitioned by an informal application from a parent or the public prosecutor. The written application, in four copies, must be submitted to the registry of the juvenile court in the district where the child resides or is habitually resident. In addition to the facts on which the application is based, the application must include information on the respective names, first names, occupations, and residences of the parties. Furthermore, the applicant must specify any chosen residence within the Grand Duchy that they do not have; otherwise, the application is invalid. Legal representation is not mandatory for the parties in court. A lawsuit to transfer custody rights is filed by application. Legal representation is not mandatory in court. The application can also be submitted to the public prosecutor's office, which will then refer the matter to the court. The father, mother, or guardian who wishes to regain their revoked rights must file their application with the court in whose district the person to whom these rights were transferred resides or is habitually resident. A lawsuit to revoke parental custody must be filed by application containing details of the relevant facts and the necessary evidence. The court clerk registers the application and summons the parents or relatives against whom the lawsuit is directed. They are not required to be represented by a lawyer in court. A father, mother, or guardian who wishes to regain the rights that have been revoked must file an application with the court in whose district the person to whom these rights were transferred resides or is habitually resident. 12. Is legal aid available to cover the costs of the proceedings?Individuals whose income is considered insufficient under Luxembourg law may be granted legal aid. To this end, they must complete a questionnaire available from the central social services office and submit it to the president of the locally competent bar association, who has the authority to make the decision. Legal aid covers all court, procedural, and document costs for which it was granted. This includes, in particular, stamp and registry fees, office fees, attorney fees, bailiff fees and costs, notary fees and costs, expert witness fees and costs, witness expenses, translator and interpreter fees, costs of certificates concerning unwritten law, customs, and traditions in the country of origin, travel expenses, fees and costs for registration, mortgage, and lien formalities, as well as the costs of publications in daily newspapers. 13. Can an appeal be lodged against custody decisions?An appeal against a family court's decision regarding parental custody may be filed with the appeals court, civil chamber. The appeal period is generally forty days. However, the appeal period against a decision issued as a preliminary injunction is only fourteen days. 14. If it becomes necessary to enforce a custody decision through a court, which court should be contacted in such cases and what procedure should be followed?Luxembourg law provides two ways to address the systematic refusal to implement a court decision regarding child custody: On the one hand, a civil sanction is provided for, namely a civil fine, which consists of a court ordering the non-compliant parent to pay a specific sum of money, calculated based on the extent of the delay in days (or weeks or months), in order to compel them to fulfill their obligations properly. The lawsuit is filed by way of service with the district court that has local jurisdiction over the child's place of residence. Legal representation is mandatory for both parties. On the other hand, criminal sanctions are provided for. The criminal act of child abduction is punishable by imprisonment for eight days to two years and/or a fine of €251 to €2,000. If the perpetrator has been fully or partially deprived of custody of the child, the prison sentence can be up to three years. The public prosecutor's office can either take up the matter ex officio or be contacted by the victim by way of a criminal complaint. The district court, acting as a criminal chamber, decides on the criminal sanctions and, if applicable, also on the compensation claims to which the victim is entitled. Legal representation is not mandatory in court. 15. What steps must be taken to have a custody decision issued by a court in another Member State of the European Union recognized and enforced in Luxembourg? What procedure must be followed?Pursuant to Council Regulation (EC) No 2201/2003 of 27 November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for the children of spouses (hereinafter referred to as the ‘Brussels II Regulation’), a decision of a court of another Member State of the European Union concerning parental custody is recognized by operation of law in the Grand Duchy. This means that the recognition of such a decision is not subject to any additional procedure. However, a decision by a court of another Member State of the European Union concerning the exercise of parental rights for a child shared by the parties, which is final, pronounced, and served there, will also be enforced in the Grand Duchy after it has been declared enforceable upon application by one of the parties involved. The application for enforcement must be filed with the President of the District Court by a lawyer. Appeals against the President of the District Court's decision may be lodged with the Cour d'appel (Court of Appeal). An appeal on points of law may be lodged against the Court of Appeal's decision. 16. Which court should be appealed to in Luxembourg against the recognition of a custody decision issued by a court of another Member State of the European Union? What procedure must be followed?Pursuant to the Brussels II Regulation, all parties involved may file an application with the President of the District Court for a decision on the non-recognition of a court decision issued by a court of another Member State of the European Union concerning parental custody. Representation by a lawyer is mandatory for this legal procedure. The application can only be rejected for the following reasons:
Either party may appeal the decision of the President of the District Court to the Court of Appeal. An appeal to the Court of Cassation is admissible against the decision of the Court of Appeal. 17. Which 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 accepted in case law that after the divorce of the parents, the law applicable to divorce proceedings must be applied, i.e. the national law that applies to the spouses jointly if they have the same nationality; the right of the spouses to their de facto shared residence if they have different nationalities; Luxembourg law applies if the spouses have different nationalities and no actual shared residence. In any case, the competing jurisdiction of the law of the place of jurisdiction is given, i.e., Luxembourg law in its capacity as public police, security and public order law. Further information
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