Cui liberi – Child Custody in the Case Law of the Constitutional Court and European Court of Human R

Keywords: child custody - the best interest of the child - joint or shared custody

Abstract: Courts must act in the best interest of the child. The question, however, is what can be considered the best interest of the child or, more specifically, what criteria should the courts take into account in this regard while deciding in the custody of whom to place the child. Although Czech legislators and scholars did provide certain guidance, the courts still might not quite understand what the best interest of the child really means. In 2012 more than 32,400 decisions placing the child into the custody of mothers when deciding about the custody for the first time came into force and thus mothers have been prioritized in more than 84 % of all cases. As the primacy of mothers is embedded neither in law nor in the Convention on the Rights of the Child and as the principle of the best interest of the child introduced by the Article 3 of the Convention, according to its author, usually requires the child to be placed into the joint or shared custody of both parents, it is more than appropriate to ask: Do the Czech courts really decide in the best interst of the child? Can they correctly gauge the best interest of the child with fundamental rights and freedoms of the parents? What is the view of the Czech Constitutional Court? And what inspiration can be found in the case law of the European Court of Human Rights? The following text answers these questions focusing on the process and substance of deciding into custody of whom to place the child and defining the circumstances under which the child should be placed into the joint or shared custody.