PARENTAL RESPONSIBILITY
AND
RIGHT OF ACCESS
NORWEGIAN MINISTRY OF CHILDREN
EQUALITY AND SOCIAL INCLUSION
ADVICE AND ASSISTANCE
FAMILY COUNSELLING
OFFICES
The family counselling offices provide a
free low-threshold service for help with various types of artnership and relationship problems. Family
counselling offices (familievernkontoret) can help parents to reach
agreements concerning the children following the breakdown of a relationship,
and offer up to seven hours of free mediation. They can also provide help and
guidance to improve cooperation etween the parents regarding the children, as
well as therapy and discussion groups. For further information, see www.bufetat.no.
THE COUNTY GOVERNOR
The County Governor (fylkesmannen)
can help parents discuss practical and legal questions related to parental
responsibility, where their child is to live permanently and right of access.
NAV
Information concerning child maintenance,
child benefit and benefit schemes for single parents can be btained from local offices
of the Norwegian Labour and Welfare Service (NAV).
For further information, see www.nav.no
SOCIAL WELFARE
OFFICES
Social welfare offices (sosialkontorer)
and clergymen (prester) can also offer advice and assistance in ealing
with the reactions and needs of children during family crises.
PP-TJENESTEN OG BUP
The Educational-Psychological Service
(PP-tjenesten) or child and adolescent psychiatry outpatient clinic (BUP) can
in some cases provide assistance in the form of treatment, advice and guidance
in connection with mental health, learning difficulties and behaviour problems.
For further information, see www.shdir.no
CHILDRENS WELFARE
SERVICES
Parents who need help, owing, for example,
to difficult circumstances of life or special needs of the child, can obtain
help from the childrens welfare services in the form of advice, guidance and
remedial measures.
LAWYER
In some cases, it may be appropriate to
take contact with a lawyer to obtain assistance with legal matters. For further
information, see www.advokatenhjelperdeg.no
FREE LEGAL AID
Free legal aid (fri rettshjelp) is
a scheme established to help people with low incomes. Free legal aid consists,
first of all, of free legal advice. This means that your expenses for seeking counsel
from a lawyer are covered wholly or partly. Free legal aid also covers free
conduct of a case. This means that you can have your lawyer’s expenses and
court costs covered in connection with a law suit, if you have a low income.
For further information concerning the
free legal aid scheme, you should contact the county governor’s office in your
county or a lawyer.
Information can be obtained from the
Ministry of Children, Equality and Social Inclusion website. www.regjeringen.no/bld. See also www.bufetat.no.
FREE LEGAL ADVICE
You can obtain free advice and counsel
from law students by contacting:
Juss Buss, Arbinsgt. 7, 0253 Oslo, Tel. 22
84 29 00
Juridisk Rådgivning for Kvinner (JURK),
Arbinsgt. 7,
0253 Oslo, Tel. 22 84 29 50
Jussformidlingen, Sydneshaugen 10, 5007
Bergen,
Tel. 55 58 96 00
Juss-Hjelpa, Universitetet i Tromsø,
Breivika senter,
9037 Tromsø, Tel. 77 64 45 61
RELEVANT ACTS
Only a very general summary has been
provided in this brochure. You will find more detailed information in
Act No. 47 of 4 July 1991 relating to
Marriage
Act No. 7 of 8 April 1981 relating to
Children and Parents
Act No. 19 of 28 February 1997 relating to
National Insurance
Act No. 2 of 17 February 1989 relating to
Advance Payment of Maintenance Contributions
Act No. 4 of 8. March 2002 relating to
Child Benefit
These acts can be obtained from www.lovdata.no Copies of these Acts can be
purchased at or ordered through a bookstore.
INTRODUCTION
When the relationship between two people
breaks down, a large number of questions and problems usually have to be solved.
This brochure focuses particularly on questions
related to parental responsibility (foreldreansvar), where children are
to live permanently and right of access (samværsrett). For questions such
as these, there are no standard solutions that suit everyone. One solution may
be the right one for some people, while another solution is better for others.
We have tried to offer advice and guidance, but it is up to the individual
parents to find the solution that is best for their children.
There are references in this brochure to
the Act relating to Children and Family (the Children Act). An English
translation of the Act can be obtained at, http://www.regjeringen.no/en/doc/Laws/Acts/the-childrenact.html?id=448389
This brochure was first published in 1988.
The brochure has since been revised several times, most recently in July 2010. The
Ministry of Children, Equality and Social Inclusion has also published
brochures entitled “Mediation for Parents”, “Separation and Divorce” and
“Property Relations between Spouses”, “Reisekostnader ved samvær” [Travel
costs in connection with access] (available in Norwegian only), “Barnefordelingssaker
der det er påstander om vold – Psykologfaglig information til dommere, advokater
og sakkyndige” [Child custody cases involving allegations of violence –
information for judges, lawyers and experts concerning psychological factors]
(available in Norwegian only), all of which contain useful information for
parents undergoing a separation or divorce. The brochures “Children when
parents move apart” and “Haven’t I got a say?” concern children’s right to
state their opinions in connection with the breakdown of a relationship. These
brochures can be obtained from the Ministry of Children, Equality and Social
Inclusion website, www.regjeringen.no/bld
CHILDREN’S NEED FOR
ACCESS TO THEIR PARENTS
CHILDREN’S RIGHT OF
ACCESS
Under the Children Act, children have the
right to have access to both parents, even when the parents are not living
together. Parents are free to agree upon the kind of access arrangements they
wish to have, based on what is best for the child. Children are entitled to
state their opinions concerning the kind of access arrangements they want.
Children’s need for access to their
parents differs depending on their age. Parents may also live so far apart that
it is impractical for them to agree on “ordinary right of access”. An access agreement
must take into account special factors such as seasonal work, shiftwork,
difficult living conditions, etc.
CHANGES IN ACCESS
ARRANGEMENTS
As a rule, it is important for children,
whatever their age, to have contact with both their mother and their father.
The role and importance of the mother and the father may vary as the child
grows older. This is also affected by the kind of relationship the child has
with other children and adults. Because children’s needs as regards their
mother and father may change, it is a good idea to adjust the access agreement
at regular intervals.
It is also an advantage for parents to
have access arrangements that function as smoothly as possible. This kind of
arrangement offers practical relief for the parent with whom the child lives.
Another aspect is the fact that children
who do not know one of their parents often fantasise about their unknown mother
or father. Such fantasies are often unrealistic and may be used against the
parent that they do know.
When a family breaks up, the children will
always be affected. The collapse of family relationships means change, and
change can cause insecurity. It can be difficult, particularly where very young
children are concerned, to explain that both their mother and their father
still love them, and that the children will continue to stay in contact with
both parents. Children often have to see for themselves that these promises are
kept before they can believe them. And they have to see for themselves that
they will not lose the parent with whom they do not live. Children often require
repeated assurances that it is not their fault that their parents no longer
live together.
MEDIATION
Mediators at family counselling offices
and external mediators are responsible for helping the parents to reach an
agreement on parental responsibility, on where the child is to reside
permanently and on access. During the mediation, priority is to be given to the
arrangement that is in the best interests of the child or children. Married and
cohabiting parents with children under 16 years of age who move apart and
parents who are considering instituting legal proceedings can be provided with
up to seven hours of free mediation. They are obliged to attend one hour of
mediation. All mediators are trained in mediation and have a sound knowledge of
adult’s and children’s reactions during and following the breakdown of a
relationship. It is generally in the best interests of the child that parents
reach sound and durable agreements concerning the children at an early stage.
This will more rapidly provide the child with peace and predictability in their
daily lives, while preventing and easing conflicts between the parents. In
order to obtain more comprehensive assistance, the parents can also make use of
the other low-threshold services of the family counselling offices, which include
help in improving parental cooperation, therapy and various types of discussion
group.
RELATIONSHIP WITH
GRANDPARENTS
When parents split up, some children lose
touch with one set of grandparents. If the children were close to their
grandparents before the family broke up, this will be a painful loss. Children often
regard their grandparents as adults who have plenty of time and who pass on
traditions.
Regardless of how old children are when
their parents break up, it helps the children if their parents manage to
cooperate. It is important to remember that, even if a marriage is dissolved, the
couple remain parents. Parents will always have their children in common.
Below you will find some comments
regarding the way children may react to the break-down of their parents’
relationship. All children are different. Parents may of course agree on
arrangements different from those suggested in this brochure, as long as they
agree that their solution is the one that is most suitable for them and their
children. If you are in doubt as to whether the access agreement which you have
chosen is the right one for all concerned, it may be useful to have a family counseling
office, for instance to take a look at it.
CHILDREN OF DIFFERENT
AGES
0 – 1 YEAR OLD
Very young children, infants less than one
year old, primarily need a close, secure relationship with a small number of
familiar persons. Young children do not have a good memory. Many parents have
no doubt experienced, especially when their child is around six months old,
that their ordinarily secure, happy offspring turns away in screaming protest
from his grandmother or grandfather, even if the grandparent recently visited
the family. In terms of parental contact, this means that access one afternoon
a week and every other weekend is not always the best arrangement, since the
child forgets the parent from one visit to the next.
Children of that age occasionally also
react to unfamiliar surroundings, particularly when it comes to sleeping in a
strange bed. Spending time in another apartment during the day is usually less
problematic, especially if the visits do not last so long that the child begins
to fear that he or she will not be going home again. Building up a child’s
sense of security in a new place, particularly as far as overnight stays and
longer visits are concerned, can therefore take some time. This is especially important
in cases where the child has had little or no contact with the parent who has
right of access. It helps considerably if the child can bring along a few
familiar, much-loved objects, such as his teddy bear or favourite blanket.
For very young children, short but
frequent visits, ideally perhaps several times a week, are often better than
“ordinary right of access”. And if the child does not know the person with whom
he is to spend time, it might be best of all if the visits took place in the
child’s home to begin with. As the child gradually feels more secure, the
visits can be longer, and possibly less frequent.
1 – 2 YEARS OLD
Security is also extremely important for
slightly older children, one-year-olds and two-year-olds. By then, moreover,
they have reached the age when limits need to be set for them in earnest. They
would like to make their own decisions, but of course there is a great deal
they neither can nor should be allowed to decide. Parents might do well to
remember that the act of deciding is often more important to children than what
they are allowed to decide. Letting children decide whether they want to have
blue or red mittens is quite all right, but not whether they should go outdoors
or stay inside. Children may also be allowed to decide whether Daddy should
read or sing to them at bedtime, but not whether it is time to go to bed.
Some limits are prohibitions that are
necessary to protect the child’s life or health. Others are less vital, yet
nonetheless reasonable. For small children, it is easier if adults agree on
what is allowed and what is not. It is often confusing if Mummy allows them to
do something, while Daddy does not. It is also an advantage if mealtimes and
bedtimes are relatively similar, regardless of which parent the child is
staying with. Keeping to more or less the same routines and making visits as
ordinary an occurrence as possible help make the child feel secure.
3 – 5 YEARS OLD
Children who are a little older can more
easily adjust to longer visits. Their memory is better and they may also find
new places exciting if they know the person they are staying with. Children
between the age of three and five are intrigued by the difference not only
between girls and boys, but also between adult women and men. They begin to
orient themselves towards their own adult role and need to know men and women well,
in order to experience both the role they themselves are to play and the one
they are not to play. Both girls and boys need to see and experience how men
and women behave on a daily basis. Since this is also an age when children test
their limits, it is easier if both parents set more or less the same limits.
Children between the age of three and five
are often tormented by “fears”. For
instance, some are afraid of the dark or of kidnappers or thieves, while others
are terrified by water. At this age many children begin to watch TV, and some
of them are frightened by what they see, sometimes even by children’s pro-grammes.
Children are often afraid of things that adults would not dream of them
fearing. Having the same rules for what a child is allowed to watch is not
always enough. It helps if both parents can discuss what frightens their child
and how each of them tackles the problem. If one parent says “Don’t worry...”
and the other says, “Watch out...” in the same situation, it’s not easy for a
child to know what to believe.
It is also an advantage for children if
their mother and father are in relative agreement as to what they can and
should expect the children to manage to do. It is not easy if one parent
virtually demands the impossible, while the other asks for nothing at all.
6 – 12 YEARS OLD
Children over 7 years of age are entitled
to give their opinion in personal matters, e.g. to state a preference as to
which parent they wish to live with.
When children start school, school
requirements and friends begin to play a greater role. Especially when a child
reaches the age of 10–12, the time spent with the parent who has right of access
can easily conflict with recreational interests, activities with friends or
other important projects. While children are of school age and even more
importantly, when they reach puberty, it is increasingly necessary, on the one
hand, for parents to take account of the child’s wishes and other commitments
he may have. On the other hand, it is important that children learn to keep an
agreement. Children are aware of the importance of rules, in games and in their
dealings with their peers and adults. An agreement regarding access, drawn up
in cooperation with the child himself, must be kept by everyone concerned, including
the child. The adult, for his part, must be aware of how very disappointed a
child may be if the adult does not keep the agreement. If, for some reason or
another, it is impossible to keep the agreement, the adult has a responsibility
to inform the child in good time, so that other arrangements can be made.
School-age children adjust easily to new places.
For instance, many children enjoy living alternately with their mother and their
father, as long as they can continue to attend the same school and stay in
contact with their friends.
13 – 18 YEARS OLD
Many parents find that the really
difficult problems related to access arise when their child is no longer a
“child”, but a teenager. The opinions of their peers are also important. Many a
parent has had to bow to the fact that their access agreement is not
functioning as intended, and is constantly being changed. At this stage,
parents can do little else but let the teenagers themselves define the
agreement. However, it is important to emphasise to children that agreements
are meant to be kept, including those with their mother or father.
PARENTAL RESPONSIBILITY
VIOLENCE AGAINST
CHILDREN
Parental responsibility involves an
obligation to care for the child. Parents must give their children love, safety
and attention, and ensure that they receive necessary supervision and care.
Child care also involves the important task of stimulating the child in its
development, among other ways, through play and social contact. Parents are
prohibited by law from using any form of violence (including light smacks and
slaps) in connection with upbringing. Nor shall children be subjected to
frightening or annoying behaviour or other inconsiderate conduct.
WHAT IS PARENTAL
RESPONSIBILITY?
The term “parental responsibility” (foreldreansvar)
as used in the Children’s Act is different from the sense of responsibility parents
have and feel for their children. The parental responsibility referred to in
the Act is the right and obligation of parents to make decisions for their
child in personal matters. Parents must exercise their parental responsibility
on the basis of the child’s needs and interests.
PERSONAL MATTERS
What the Act means by personal matters are
issues such as the child’s upbringing, where the child is to live, which kind
of school he should attend, and the like. If parents have joint parental
responsibility (felles foreldreansvar), both of them must give their
consent in order for the child to be able to join or resign from associations
or religious communities, change name, be given up for adoption or marry before
the age of 18. Parents with joint parental responsibility must also give their consent
in order for children under 15 to be allowed to work.
MOVING ABROAD
If parents have joint parental
responsibility, they must both agree to the child moving abroad. If one parent
has sole parental responsibility, the other cannot object to the child moving out
of the country. If there is a dispute between the parents concerning parental
responsibility or where the child is to live permanently, the child may not
move out of the country until the dispute has been decided.
HOLIDAY ABROAD
A parent who has joint or sole parental
responsibility may take his child abroad on short trips without the consent of
the other parent. If it is uncertain that the child will return, a court of law
may prohibit the child from leaving the country.
A parent without parental responsibility
must have the consent of the parent who has parental responsibility in order to
be able to take their child to another country. However, a court may grant
permission for the trip abroad if it is obvious that the child will return.
THE CHILD’S
PASSPORT
If parents have joint parental
responsibility, both of them must sign the application for a passport if the
child is under 18 years of age. However, the police may issue a passport to the
child with the consent of only one of the parents in cases when the parent has
the right to take the child abroad under the provisions of the Children Act,
even if the other parent does not consent to this.
RELATIONSHIP WITH
SCHOOLS
Parents with joint parental responsibility
are entitled to receive the same information from their child’s day care
institution, school, etc. Both parents may attend interviews with teachers, parents’
meetings and the like. If one of the parents has sole parental responsibility,
the other parent may not demand to be summoned to, or take part in, ordinary
interviews with teachers. You can read more about the right to information on
page 24.
HOW LONG DOES
PARENTAL RESPONSIBILITY LAST?
As the child grows older, he has the right
to make more decisions for himself. The parents’ right to decide on behalf of
the child is reduced correspondingly. A child is of full age and legal capacity
when he reaches the age of 18, and can then make all his own decisions. From
the age of 15, the child is entitled to choose his own education. At that age,
the child can also join or resign from associations and religious communities
as he chooses.
THE CHILD’S RIGHT
TO EXPRESS HIS OPINION
As their child grows older and more
mature, parents must listen to what the child has to say before making any
decision concerning the child’s personal matters. Parents and other persons with
whom the child has contact must attach importance to the child’s opinion.
Children who have reached the age of 7 are allowed to state their opinion as
regards which parent they wish to live with after their parents split up. There
is nothing to prevent younger children, too, from stating their opinions. When the
child is over 12 years of age, considerable importance shall be attached to the
child’s opinions. This does not mean that the child can decide. It is the
parents who decide where the child is to live.
Just as important as the child’s right to
state where he wants to live is the right to not have to choose between his
parents. If the child does not wish to state which parent he wants to live
with, no pressure must be placed on the child to do so.
PARENTAL
RESPONSIBILITY AND THE CHILD’S FINANCIAL SITUATION
The child’s guardian (verge) makes
decisions regarding any money or other assets the child may have. As a rule,
the persons who have parental responsibility are the child’s guardian. The
guardian may not make decisions regarding money the child has personally earned
after reaching the age of 15.
WHO HAS PARENTAL
RESPONSIBILITY?
Parents who are married have joint
parental responsibility for the children that they have together. If the
parents marry after the child is born, they also have joint parental
responsibility.
COHABITING PARENTS
There are new rules for this that apply to
children born after 1 January 2006. Parents who live together when paternity is
established shall have joint parental responsibility for common children.
Parents who live together may not make an agreement that one of them shall have
sole parental responsibility. Parents who are registered at the same address or
who have submitted a declaration of cohabitation to the National Population Register
shall be regarded as cohabitants. If the parents are registered at the same
address, they shall automatically have joint parental responsibility. If they
are not registered at the same address, but nevertheless live together, they
may submit a declaration of cohabitation to the National Population Register. They
may also submit such a declaration at a later date. Parents may also submit a
declaration of cohabitation to the National Population Register and be given
joint parental responsibility for children born before 1 January 2006.
Prior to 1 January 2006, unmarried parents
were required to notify the National Population Register if they wished to have
joint parental responsibility. If no such notification was made, the mother has
sole parental responsibility.
PARENTS WHO DO NOT
LIVE TOGETHER
In the case of parents who are not living
together when paternity is established, the mother has sole parental
responsibility. The parents may agree that they shall have joint parental responsibility.
Such an agreement can be made on the form for acknowledgment of paternity (both
the mother and the father must sign the agreement) or a separate agreement
concerning this may be submitted to the National Population Register. The child’s
mother may have good reasons for wishing to have sole parental responsibility.
However, it is not sufficient that the mother wishes to have sole parental
responsibility. Court judgments show that weighty grounds are required to
prevent the father from sharing parental responsibility if he takes the case to
court. Parents who have children without living together, but who later move
together, do not automatically acquire parental responsibility by notifying
change of address. They must either submit a separate agreement concerning
joint parental responsibility or a declaration of cohabitation to the National
Population Register.
NOTIFYING THE
NATIONAL POPULATION REGISTER
When parents who have joint parental
responsibility split up, they will continue to have joint parental
responsibility unless they establish an agreement stating that the father or
the mother is to have sole parental responsibility. The agreement must be reported
to the National Population Register in order to be valid. If they do not agree
on the question of parental responsibility, they may ask the court to decide
the issue.
PARENTAL
RESPONSIBILITY AFTER THE DEATH OF A PARENT
If the parents have joint parental
responsibility and one of them dies, the surviving parent has sole parental
responsibility. If the child lives with both parents, but only the mother has
parental responsibility and she dies, parental responsibility will be
transferred to the father.
If another person wishes to take over
parental responsibility for the child after one of the parents dies, he may
bring an action before a court of law within six months of the parent’s death. While
the court must attach importance to biological ties, what is best for the child
must be the decisive factor.
If the parents have stated in writing whom
they wish to have parental responsibility in the event of their death, the
court should also attach importance to this. More information is provided in
the brochure “Hvem får ansvaret for barnet mitt hvis jeg dør?” [Who will
be responsible for my child if I die], issued by the Ministry of Children,
Equality and Social Inclusion. This brochure can be obtained from
www.regjeringen.no/bld , and is only available in Norwegian.
WHERE THE CHILD IS
TO LIVE PERMANENTLY
The parent with whom the child lives
permanently has somewhat greater authority to decide on matters concerning the overall
well-being of the child. The other parent may not, for example, object to the
parent with whom the child lives deciding whether the child is to attend a day
care institution or be cared for by a professional child-minder. The parent
with whom the child lives permanently may move to another part of the country
with the child. The other parent is entitled to state his or her opinion before
they move, but cannot prevent them from moving.
DIVIDED RESIDENCE
Parents may choose that their child is to
reside permanently with both of them (delt bosted). Whether or not this
is a good arrangement for the child will depend on the child’s age, whether the
parents live near each other and whether the parents are able to cooperate. If
the parents agree that the child is to reside permanently with both of them,
they must nevertheless agree that the child is to be registered in the National
Population Register as residing permanently with one of the parents. This kind
of arrangement will have an effect on the way the child maintenance
contribution (barnebidrag) is determined, and on the right to a benefit
for single-parent families (stønad til enslig forsørger) and on child
benefit (barnetrygd). Further information can be obtained from local
offices of the Norwegian Labour and Welfare Service (NAV).
The parent with whom the child lives
permanently must also have parental responsibility. Therefore, if parents agree
that their child is to live with each of them for half the time, they must also
agree to have joint parental responsibility.
CHILD MAINTENANCE
Both parents have a duty to provide for
their child’s support according to their ability. If the parents do not live
together, the parent with whom the child does not live must pay child
maintenance. The Children Act provides that the parents are obliged to bear the
costs of maintaining and educating their children.
The parent who does not live with the
child shall pay a fixed monthly amount (child maintenance). The parents may
agree on the maintenance amount. If they fail to agree, they may request the
Norwegian Labour and Welfare Service (NAV) to fix the maintenance amount. The
Labour and Welfare Service may also order coverage of specific non-recurring
expenses. You can obtain more information on calculation of child maintenance at
www.nav.no
ADVANCE PAYMENT OF
CHILD MAINTENANCE
The person entitled to maintenance may
apply for advance payment of the contribution (forskuttering av barnebidrag)
by the public authorities. The advance on child maintenance is means tested on
the basis of the recipient’s income. According to this, the advance may be
provided at 0, 50, 75 or 100% of the full rate. Information concerning the
income limits that apply can be obtained from local offices of the Norwegian
Labour and Welfare Service (NAV).
INDEX REGULATION
The child maintenance contribution is
indexed on 1 July each year, unless otherwise agreed or determined.
DECISION BY A COURT
If parents do not agree on parental
responsibility, where their child is to live permanently or right of access,
they may let these issues be decided by a court of law. Before the matter can be
brought before the court, the parents must attend mediation. Court procedure
has the best interests of the child as the overriding consideration, and
provides for helping the parents to reach agreed solutions. In mediating
between the parents, the judge may be assisted by an expert, and arrangements
may be decided for the parents to try out for a given period. When a case is
not appropriate for mediation or the parents do not wish this, it shall be
dealt with in the traditional manner with a court hearing and judgment.
If judgment is passed in a case, the court
must as a general rule decide that the child is to live permanently with one of
the parents.
THE POWER OF THE
COURT TO RULE THAT RESIDENCE SHOULD BE DIVIDED BETWEEN THE PARENTS
From 1 July 2010, the courts have the
power, when there are special reasons for so doing, to rule that residence
should be divided between the parents against the will of one or both of the
parents. This is an exception with narrow limitations. In order that the judge
shall be able to impose divided residence, the parents must live close to each
other, the child must be able to maintain contact with friends and recreational
activities from both homes, the parents must succeed in cooperating well on care
of the child and the child itself must be satisfied with such an arrangement.
It does not constitute sufficient grounds that the parents are deemed to be
equally good carers for the child or that the child is equally attached to both
parents. The judge is to make a decision on the basis of what is best for the
child, and not opt for a less satisfactory solution out of regard for a balance
of fairness between the parents. The requirement that the court must have
special reasons for imposing divided residence, implies that the judge must be
convinced that divided residence will be in the best interests of the child. If
there is doubt that divided residence will be in the best interests of the child,
the judge must impose permanent residence with the one parent and access to the
other. For children under 7 years of age, it will not in principle be
appropriate to impose divided residence since children in this age group are
assumed to be more vulnerable and to have a greater need for stability. The
court may also fix an access arrangement for up to half the time if it finds
that this would be in the best interests of the child.
THE CHILD’S BEST
INTEREST
The Children Act states that a decision
regarding parental responsibility, where a child is to live permanently and
right of access must always be governed by what would be best for the child. It
is prescribed by law that weight shall be given to the child’s opinion when
considering such matters. The law also specifically states that regard shall be
paid to ensuring that the child is not subjected to violence or in any other
way treated so as to harm or endanger his or her mental or physical health.
When considering what is best for the
child in decisions concerning permanent residence, legal practice ascribes
particular importance to certain factors. These have traditionally been factors
such as the child’s emotional attachment and the parents’ personal qualities,
the regard for stability, the risk associated with a change of environment, the
regard for the best possible total parental contact and the regard for avoiding
separation of siblings.
MEDIATION
Before a case concerning parental
responsibility, where a child is to live permanently or right of access may be
brought before the County Governor or a court of law, the parents must attend a
process of mediation (mekling). The purpose of mediation is to help the
parents reach an agreement regarding their children as an alternative to court
proceedings. The mediator’s role is to help the parents to reach agreement in
cases where this is deemed possible. The advantage of the parents reaching
agreement without a court hearing is that the family can more rapidly resolve
the residence and access arrangements, and avoid a more lengthy legal process.
The parents also avoid having to pay lawyers’ fees. The Bufetat can also
provide information about approved mediators. You can read more about mediation
in the brochure “Mediation for parents”.
ENFORCEABLE
AGREEMENTS
Parents may, if they
so agree, submit their agreement to the County Governor and request that it be
made enforceable. The County Governor may approve the parents’ agreement so
that it can be enforced should one of them later so wish. Just as when a
legally enforceable judgment or court settlement has been made, this entails
that a parent may request the court to implement enforcement if the enforceable
agreement is not fulfilled. Coercive measures may include fetching the child or
imposing a coercive fine. In the case of failure to observe access rights, a coercive
fine may be imposed. For further information on enforcement of access, see page
23.
Even if an administrative decision has
been made or judgment pronounced concerning parental responsibility, where a
child is to live permanently or right of access, the parents may agree on a
different solution. Both parents must be in agreement about this, and the
agreement should be in writing.
RIGHT OF ACCESS
THE CHILD’S RIGHT
OFACCESS
The child has a right to access (samværsrett)
to both parents, even if they live apart. Both parents are responsible for
ensuring that this right is respected. The parents must reach an agreement as
to how the right of access is to be carried out in practice.
The child has a right to the care and
attention of the parent with whom he is spending time. The parent who is with
the child may make decisions related to care of the child while they are together.
The law provides that a child has a right
of access to both parents even when the parents have not lived together after
the child was born. However, this right of access is not automatic. The parents
must therefore enter into an agreement as to how access is to be carried out in
practice.
The parents themselves agree on the extent
of their access on the basis of what they believe to be best for their
children. In agreements or decisions concerning access, pursuant to the Children
Act, importance shall be attached among other things to the child’s opinion,
regard for the best possible contact between the child and his or her parents,
the age of the child, the extent of the child’s attachment to the local
community, the travelling distance between the parents and regard for the child
in other respects.
Access shall not be ruled if it is not in
the best interests of the child. Clarifications have been included in the Act
in order to ensure that allegations of violence and abuse are taken seriously.
«ORDINARY ACCESS»
Each agreement shall be based on an
assessment of the needs of the specific child in question, and not on a standardized
arrangement. Parents often agree on “ordinary access” (vanlig samvær) without
really considering whether this is the best solution for the child or for
themselves.
“Ordinary access” entitles a parent to
spend one afternoon a week with an overnight stay, every other weekend, a total
of three weeks of the summer holiday and alternate autumn, Christmas, winter
and Easter holidays with the child. Even if parents agree on “ordinary access”,
it is often necessary to make a more detailed agreement, specifying when the
child is to be fetched and brought back, during which weeks of the summer
holiday the access shall take place, how long the holiday access periods shall be,
with which parent the child is to spend the various holidays with first, etc.
For some parents, weekend access means that the child is fetched at the day
care institution on Friday afternoon and brought to the day care institution on
Monday morning. For other parents, weekend access means from Saturday to
Sunday. The parents themselves must come to an agreement that suits their children
and their family situation. It may be useful to make the agreement as detailed
as possible. A written agreement is often more carefully thought out than an
oral one, and it is easier to avoid arguments about what was actually agreed.
If parents cannot reach an agreement
concerning access, a court of law can decide the question. Decisions regarding
right of access must be governed by what is best for the child. If access is
not in the best interests of the child, the court must decide that there shall
be no access.
CONTENTS OF AN
ACCESS AGREEMENT
Below is a list of questions that you
should think about carefully before drawing up an agreement on right of access
(samværsavtale). It is important that you think about what would be best
for your own child. An access agreement should cover:
• access on weekdays and at weekends
• school holidays
• other public holidays
• birthdays and other special occasions
• who is to fetch and bring the child?
• how right of access should be defined if
one of the parents
moves to another part of the country?
• who is to pay for travel expenses in
connection with right of
access?
WHO IS TO FETCH AND
BRING THE CHILD?
It is often practical to fetch your child
at a place other than where he or she lives, such as at the day care
institution, school or day-care centre for schoolchildren. If you decide on
this arrangement, it is important that you tell the day care institution, school,
etc. who is to fetch the child. If the child is to be fetched at places other
than at home, this should be stated in the agreement.
HOLIDAY
For many people, problems arise in
connection with access during Christmas and Easter holidays. You should therefore
agree on which days at Christmas and Easter the child is to spend with each
parent. It may be wise to agree specially on arrangements for access during the
first Christmas and Easter. You must also think about and decide how access is
to be organized during other school and public holidays.
VERY YOUNG CHILDREN
When very young children are involved, it
is important to consider whether the parent with right of access should spend
time with the child where the child lives or in another place. It may be agreed
that the parent with whom the child lives must be present when the other parent
is with the child.
WHEN THE CHILD IS
SICK
Parents should agree on what is to be done
about access if their child is sick. For instance, they may decide that access
is to be postponed until later, or that the parent who is entitled to have access
is to come to the child’s home.
ACCESS COSTS
It is usual that the parent who is
spending time with the child covers the cost during this period of food, drink
and health and sanitary articles as well as costs associated with play and
recreation.
In addition, costs may accrue in
association with the child’s travel to and from the parent it is to spend time
with. The parents may themselves agree on the most appropriate way of sharing
the travel expenses associated with access in their specific situation. If the
parties fail to agree otherwise, the travel expenses shall be shared between
the parents in proportion to the size of their incomes. The costs to be shared
are those associated with the child’s travel as well as the travel expenses of one
adult if the child is not able to travel alone. The parents’ travel alone in
connection with fetching and bringing the child to and from access is also
included. When the access is to take place where the child lives, costs
associated with travel to and from the child’s place of residence are also
included. The County Governor or the court may fix a different distribution of
travel expenses if special grounds so indicate. For more information, see the
brochure “Reisekostnader ved samvær” [Travel costs in connection with access]
(available in Norwegian only).
WHEN THE PARENTS
LIVE FAR APART
If one of the parents lives in another
part of the country, the parents must take this into account when they enter
into agreement on right of access. A practical solution in such cases is to have
the child visit the parent a little less often, but for a longer period of
time. In these cases, it is particularly important to agree who is to pay for
travel expenses. The parents must also consider whether the child can travel
alone, or whether he or she needs to be accompanied.
If the parents do not come to an
agreement, it may be helpful to ask the help of a third party in solving the
problems. A family counselling office can provide assistance in solving
problems related to access and similar matters.
TIME LIMIT FOR
NOTIFICATION
It may be wise to agree on a time limit
for notification on occasions when access must be cancelled or postponed. It is
best for all concerned to agree well in advance when access is to take place
during the summer holidays.
OBLIGATION TO
NOTIFY CHANGE OF RESIDENCE
If one of the parents wishes to move, the
other parent is to be notified six weeks in advance of the move. This is in
order that the parents shall have the time and opportunity prior to the move to
discuss and consider what would be the best future care solution for the child.
The obligation to notify applies both to the residential parent and the access parent.
It applies in all cases where there is an oral or written agreement or decision
concerning access even if the other parent does not share parental
responsibility. The obligation to notify applies regardless of the distance of
the move and regardless of the effect of the move on access.
It is the parent who wishes to move who is
responsible for showing compliance with the obligation to notify. This should be
done in writing. If a parent fails to fulfil the obligation to notify change of
residence, no sanctions apply. However, it is important to be aware that
failure to notify may have significance in any legal action concerning
residence and access.
ACCESS TO PERSONS
OTHER THAN PARENTS
Grandparents or other relatives who have a
close relationship with the child can request right of access to the child.
However, right of access for persons other than parents can only be granted when
one or both of the parents are dead or when one of the parents has been denied
right of access, on condition that the parent who has been denied access is not
allowed to see the child. Such right of access must be specially determined in each
particular case by a court. The decision must be governed by what is best for
the child.
As long as the parents are alive, they may
of course agree that the child is to have access to persons such as his
grandparents, even if this is not covered by what is normally called right of access.
NEW ACCESS
ARRANGEMENTS MAY BE AGREED ON
If the parents agree, they may change the
access arrangements at any time. This also applies in cases where the question
of access has been decided by the county governor or a court. Such an agreement
should be made in writing.
WHEN THE RIGHT OF
ACCESS DOES NOT FUNCTION SATIS-FACTORILY
Some parents experience problems when
access arrangements are put into practice. This may be because the parents have
not come to any special agreement regarding access or because the agreement is
not detailed enough. In some cases, the parents find it so difficult to cooperate
with one another that the child does not have access to the parent with whom he
or she does not live.
FAMILY COUNSELLING
OFFICES CAN HELP PARENTS TO COOPERATE
The family counselling offices provide
assistance in order to improve parental cooperation for ex-partners and for
parents who have children in common but have never lived together. For example,
the parents can obtain assistance in dealing with communication difficulties or
in discussing how matters of practical importance can be regulated in the
agreement concerning the children.
REQUEST FOR A NEW
DECISION
If the parent with whom the child lives
prevents the other parent from exercising his or her right of access, the
parent who has right of access may request that a new decision be made regarding
who is to have parental responsibility or with whom the child is to live. The
case may then be brought before the County Governor or a court of law.
ENFORCEMENT OF
RIGHT OF ACCESS
The enforcement measure applied in the
event of failure to comply with a judgment, court settlement or enforceable
agreement is a coercive fine. The access parent may request the district court
to decide a fixed coercive fine (stående tvangsbot) to apply each time the
right of access is not respected. The person with whom the child resides
permanently is required to loyally and actively help in ensuring that the
access takes place. The enforcement officer is to demand payment of the
coercive fine when the rightholder so demands.
THE RIGHT TO
INFORMATION AND THE RIGHT TO BE HEARD
If parents have joint parental
responsibility, both of them have an equal right to information about their
child. The parents are only entitled to information about the child, not about
the other parent.
Even if one of the parents does not share
parental responsibility, he or she nevertheless has a right to information
about the child. The right to information applies even if the parents have not
lived together after the child was born.
RIGHT TO
INFORMATION ABOUT THE CHILD
If one of the parents has sole parental
responsibility, he or she must give the other parent information about their
child when asked to do so. A parent who does not share parental responsibility is
also entitled to receive information about the child from day care
institutions, schools, the health and social welfare authorities and the
police. Information must not be provided if this might be to the detriment of
the child. If the child is entitled to confidentiality concerning certain
matters, no information must be given to either of the parents concerning such matters.
If a day care institution, a school, the
health and social welfare authorities or the police do not wish to provide
information concerning the child, an appeal may be made to the county governor.
In very special cases, the county governor
may decide that the parent who does not have parental responsibility is to lose
the right to receive information about the child. This might happen if the
right to information is abused or if the parents have very serious conflicts.
THE RIGHT TO
EXPRESSAN OPINION, BUT NOT TO DECIDE
The parent with whom the child does not
live permanently and who does not share parental responsibility has a right to express
his/her opinion before the other parent makes a decision that will make it
difficult or impossible to exercise the right of access. This might apply if
one parent moves to another part of the country or abroad. A change of
residence must be notified (see page 22). It also applies to questions
concerning adoption of the child. The parent who does not share parental responsibility
only has a right to state his or her opinion. The parent who has sole parental
responsibility decides the question. It may be useful, however, if the parent
who has sole parental responsibility consults the other parent.
When a child over 16 years of age goes to
see a doctor, the doctor has a duty to keep this information confidential. When
the child is between the ages of 12 and 16, the doctor has the right to keep
the information confidential, i.e. the doctor himself may decide whether he
should inform the parents about the visit. This applies, for instance, when
children consult a doctor with regard to birth control, etc.
An English translation of the Children
Act: http://www.regjeringen.no/en/doc/Laws/Acts/the-childrenact.
html?id=448389
For the addresses of the family
counselling offices, see www.bufetat.no
Published by:
Norwegian Ministry of Children, Equality
and Social Inclusion
Public institutions may order additional copies
from:
Norwegian Government Administration
Services
E-mail: publikasjonsbestilling@dss.dep.no
Internet: www.publikasjoner.dep.no
Telephone: + 47 22 24 20 00
Publication number: Q-0580 E
Design: David Keeping
Print: Merkur trykk AS 09/2011 - Impression
2000
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