The separation of parents, whether they are married (divorce or legal separation proceedings) or not (Pacs, cohabitation) entails for their children the fixing of their place of residence with the organization of a right of visit and 'accommodation.
A choice guided by the interests of the children and the need to maintain equity between parents.
Account will be taken of the family's organization mode before separation (days of extra-curricular activities, etc.), of theopinion of the child if he has been heard by the judge, the results of various expertises and social surveys, requests from parents, etc.
Finally, in the event of a persistent disagreement between the parents, it will be up to the judge to assess the best interests of the child and to decide which type of custody will best suit the family situation.
The residence of the child can be fixed, either alternately with his fathers and mothers (alternating custody), or with a parent as the main person with a right of access and accommodation granted to the other parent, or with a parent exclusively.
Alternate residence, which the Court of Cassation refused to apply until 2002, is now codified in Articles 373-2-9 of the Civil Code and 1180-2 of the Code of Civil Procedure. The system is simple: one week with one parent and the next with the other. This type of custody having become the norm, the judge can impose it on the spouses if they do not agree and if the interests of the child are not opposed (article 373-2-11 of the civil code).
The law does not specify anything about the methods of exercising joint custody. It will therefore be necessary to take into account the age of the child, the geographical proximity of the parents' homes, and collect the opinions of children over 13 years old.
In general, there will be a regular alternation, the period of which may be longer (for adolescents) or shorter (for young children).
The transfer from one home to another can be done on Friday evening after school, Saturday morning or Sunday evening… Everything will depend on the organization chosen by the parents.
For school vacation periods, children may stay the first half of the vacation with one parent, then the other half with the other parent. But here again, if the parents agree, all modalities are possible unless they do not sufficiently protect the interests of the children.
The principle being that if the spouses disagree, the judge will set the practical conditions of the alternation and will specify which parent will be responsible for taking or bringing back the children, to pay the costs of the journeys, etc.
One thing is certain, children will be at their mother's house on Mother's Day and at their father's house on Father's Day, no matter who they are staying with on those days.
Note: From a tax point of view each parent will be equal and will benefit from half of the shares. Regarding family benefits, they will be paid to the one with the least income, unless the parents decide otherwise.
Fixing the child's residence with one parent with visitation and accommodation rights for the other parent
With this type of custody, the child's habitual residence is fixed with one of his parents and his other parent will benefit from visitation and accommodation rights. This type of care will generally be more suitable for couples whose relationships are very conflictual (because a minimum of agreement is necessary for the joint residence to work) and in the presence of young children.
Parents can, if they agree, adjust the conditions of this visitation and accommodation right on their own. They can arrange for the child to spend, in addition to the weekend, the day on Wednesday with the parent who has visitation rights. It will be the same for the custody rights during the holidays, by planning split periods (by period of 15 days) according to the age of the children or the schedules of each one.
It is only in the absence of an amicable agreement that the provisions of JAF taken in its decision (non-conciliation order, divorce judgment, separation, etc.) will apply.
The ruling will set the conditions for exercising this right of visitation and accommodation of the parent who does not have custody of the children and specify that it will be exercised:
- From Friday 18 p.m. (or after class…) to Sunday 18 p.m. (or Monday at the start of class), every other week, or every even (or odd) weekend.
- Half of school vacations, with the first half of school vacations in odd years for the mother and the second half of school vacations in odd years for the father. The second half of school vacations in even years for the mother and the first half of school vacations in even years for the father.
The decision may also provide for who will bear the transport costs if the child has to take the train or the plane to go to the parent who has the right to visit.
Note: If a public holiday (or a bridge) precedes or extends the weekend, for example with Easter Monday, the right of visit and accommodation will extend until Monday evening (or Tuesday morning with school). If Friday is the holiday, the weekend will start on Friday morning (or Thursday after school). If there is a bridge with a holiday Thursday, the period will extend from Thursday morning (or Wednesday evening) to Sunday evening (or Monday morning at school). The child spends Mother's Day Sunday with his mother and Father's Day Sunday with his father. In the event of non-compliance with the modalities provided for the exercise of visitation and accommodation rights, the parent who does not present the child incurs criminal penalties.
Here is how the weekends for fathers (odd weeks in purple) and mothers (even weeks in red) are organized for the months of April and May 2017 in order to see more clearly.