BELGIUM Law and Practice Contributed by: Larissa De Wulf and Carolyn Vanthienen, Tiberghien
ing the status of a person or concerning parental responsibility where the matter relating to mainte ‑ nance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties. However, the Maintenance Regulation 4/2009 also puts a limit on proceedings. Where a decision is given in an EU member state or a 2007 Hague Conven ‑ tion contracting state in which the creditor is habitu ‑ ally resident, proceedings to modify the decision or to obtain a new decision cannot be brought by the debtor in any other member state as long as the credi ‑ tor remains habitually resident in the state in which the decision was given. Exceptions apply (Article 8). 3.2 Living/Contact Arrangements and Child Maintenance Jurisdiction of the Family Court Disputes between parents regarding a (minor) child’s living arrangements, the right to personal contact, and maintenance fall within the jurisdiction of the family court. An application regarding parental authority, a minor’s living arrangements, the right to personal contact, or maintenance may be filed: • by writ of summons served on the defendant by a bailiff on behalf of the plaintiff; • by petition served on the defendant by the clerk of the family court on request of the plaintiff; or • by joint petition by the clerk of the family court on request of both parents. The applications are considered urgent by the court and judgment will be given as in interlocutory pro ‑ ceedings. Appearance in Person The appearance of both parties in person at the intro ‑ ductory hearing is obligatory in cases pertaining to: • separate residence; • parental authority; • a child’s living arrangements or the right to per ‑ sonal contact; or • maintenance.
However, in all proceedings concerning minors, the requirement for both parents to appear in person is extended to all hearings in which questions regarding the minors will be discussed, and to all substantive hearings (hearings in which the case will be heard on its merits). In exceptional circumstances, the court can grant an exception to this obligation to appear in person. Interests of the Child In all applications regarding a minor, the interests of the child play a key role. In this regard, the Fam ‑ ily Court can take all measures or necessary acts of investigation – for example, to understand the child’s personality and the environment in which they are being brought up in order to determine their best inter ‑ ests and their most appropriate upbringing or care. As such, there are no restrictions on the court’s ability to make an order as to a child’s living and contact arrangements, except for the rule that the order must be in the best interests of the child. The court may order a social examination through the competent social service or submit the child to a medical-psychological examination. Where appropri ‑ ate, the court may also take into account the opinion of the minor themselves (see 3.3 Other Matters ). Parental Responsibility and Custody As a general rule, parental responsibility is exercised jointly by both parents. This means that the parents must decide together on the important issues relating to the care and upbringing of the children. In excep ‑ tional circumstances, the court can deviate from the general rule of joint parental authority, but this is rare and there must be a strong argument for imposing exclusive parental authority. As regards custody, evenly divided housing or resi ‑ dence of the child is the preferred arrangement. The rules of parental responsibility and custody are the same whether the parents are married, living together or separated. In cases where the parents are no longer living togeth ‑ er, and they do not agree on the children’s residence, the court must examine as a matter of priority whether
42 CHAMBERS.COM
Powered by FlippingBook