Separated parents who cannot agree where the children live: what the law says in six jurisdictions
Italy, France, Germany, Spain, England and California all decide by the child's interest and none of them prescribes a calendar. They differ on the starting point, on whether the court gets a checklist, and on whether a child can say no.
The problem
Two parents have separated and cannot agree where the children should live or how much time they spend with each of them. One parent is deciding alone, cancelling weekends, and treating the arrangement as theirs to set. The other wants to know how the decision is actually made, and whether the law starts from a presumption of equal time.
What they agree on
Every one of these six systems decides by one standard and only one: the interest of the child. Italy's art. 337-ter has the judge act "con esclusivo riferimento all'interesse morale e materiale" of the children. Spain's art. 92.2 requires a reasoned decision "en el interés superior del menor". France's art. 373-2 has the judge rule "selon ce qu'exige l'intérêt de l'enfant". Germany's § 1671(1) asks what "dem Wohl des Kindes am besten entspricht". England's Children Act s. 1(1) makes the child's welfare "the court's paramount consideration", which outranks the parents' interests rather than merely competing with them. California's §§ 3011 and 3040 both run on the best interests of the child. Not one of the six weighs the parents' fairness to each other.
Second, separation by itself changes nothing about parental responsibility. France states it flatly — "La séparation des parents est sans incidence sur les règles de dévolution de l'exercice de l'autorité parentale". Italy says parental responsibility is exercised by both parents, and reserves the major decisions on schooling, upbringing, health and habitual residence to joint agreement, with disagreement going to the judge. Spain's art. 92.1 opens by saying separation, nullity and divorce do not release parents from their obligations to the children. Germany's § 1671 presupposes joint custody continuing until a court removes it. A parent who has simply started deciding alone is not exercising a right in any of the six.
Third, and worth saying plainly: none of these eleven provisions contains a calendar. There is no weekend rhythm, no holiday split, no percentage in any of them. The German page puts it best — "jedes zweite Wochenende" is not in the statute. What a particular family ends up with comes from agreement or from an order tailored to the facts, and those facts — ages, distances, working patterns, what has actually been happening — are what a family lawyer in the relevant country works with. Nothing here predicts an outcome.
Where they part company
| Jurisdiction | What its law does | Why it matters |
|---|---|---|
| Italia | The starting point is not the same anywhere. Italy comes closest to a presumption: the judge "Valuta prioritariamente la possibilità che i figli minori restino affidati a entrambi i genitori", so joint entrustment is considered first and sole custody is the departure, dealt with in art. 337-quater. Spain sits at the other end: art. 92.5 grants joint custody where both parents ask for it, and art. 92.8 allows it on one parent's application only "excepcionalmente", with a report from the Ministerio Fiscal and reasoning that only this protects the child's interest. | The same contested application — one parent asking for shared custody over the other's objection — meets a preference in Italy and an exception in Spain. This is the single largest divergence in the cluster and it is written into the text of both articles. |
| France | France places alternating residence and residence with one parent on the same plane — "la résidence de l'enfant peut être fixée en alternance au domicile de chacun des parents ou au domicile de l'un d'eux" — and its page is explicit that art. 373-2-9 does not institute alternating residence as a principle. What France does have that no one else does is a trial: on one parent's application, or where they disagree, the judge may order alternating residence provisionally for a period he fixes, and rule definitively at the end of it. | It moves the argument off principle and onto evidence. Rather than deciding in advance whether alternating residence would work for this family, the French court can find out and then decide. |
| Only France legislates about moving house. Art. 373-2 requires "une information préalable et en temps utile" to the other parent for any change of residence that alters how parental authority is exercised — information, not consent — and then has the judge, on disagreement, allocate travel costs and adjust the maintenance contribution accordingly. The obligation is disapplied where a parent has been authorised to conceal their address under a protection order. | It is the provision French parents look up most, and it is regularly misread as a veto. Elsewhere a move is handled indirectly: in Italy habitual residence is one of the major decisions requiring joint agreement, and in England it is a specific issue or prohibited steps question under s. 8. The German and Spanish members do not address relocation. | |
| Deutschland | Germany does not frame the question as choosing an arrangement at all. § 1671 is an application to end joint custody: a parent applies for sole custody, or for part of it, and it is granted if the other parent consents or if it is expected to be best for the child. And "oder einen Teil der elterlichen Sorge" is the part that matters in practice — the court can move a single area, typically the right to determine residence or health decisions, leaving everything else joint. | It is the mildest available intervention and often what a German court does. Nothing in the English, Californian or Spanish members offers an equivalent surgical transfer; Italy's nearest analogue runs the other way, allowing the judge to order separate exercise of parental responsibility for matters of ordinary administration only. |
| Germany is the only one of the six that gives the child a veto. Under § 1671(1) no. 1, the route via the other parent's consent fails if the child has turned 14 and objects to the transfer. Elsewhere the child is heard but does not decide: Spain requires the child with sufficient judgement to be heard (art. 92.6, and art. 94 "previa audiencia del hijo"), England puts ascertainable wishes and feelings on the checklist, and California's § 3011 list says nothing about the child's wishes at all — its page notes they are handled by other provisions of the Family Code. | A fourteen-year-old in Germany can stop a transfer both parents have agreed to. That is a categorically different position from being consulted, and it is the sharpest single procedural difference in this comparison. | |
| Germany separates custody and contact into two provisions that do not depend on each other, and its page states that a custody decision leaves contact untouched. § 1684 then frames contact from the child's side first: "Das Kind hat das Recht auf Umgang mit jedem Elternteil; jeder Elternteil ist zum Umgang mit dem Kind verpflichtet und berechtigt." England joins the two instead: a s. 8 child arrangements order covers with whom a child lives and with whom they spend time or otherwise have contact, in one order. | The German wording makes contact a duty owed to the child, not merely a parental entitlement to be exercised or dropped. Italy's art. 337-ter opens the same way, from the child's right to a balanced and continuing relationship with each parent; the Spanish art. 94 and the French art. 373-2-9 describe a right of the non-resident parent for the court to regulate. | |
| The parent who obstructs is dealt with five different ways. Germany writes a rule of conduct into the code — § 1684(2), parents must refrain from anything that impairs the child's relationship with the other — and backs it with a time-limited Umgangspflegschaft carrying the right to demand the child be handed over. Italy has the judge take that conduct into account "anche al fine della modifica delle modalità di affidamento". Spain lets the court limit or suspend the regime where its duties are breached "grave o reiteradamente". California turns it into a selection criterion: § 3040(a)(1) requires the court to consider which parent is more likely to allow frequent and continuing contact with the other. France reaches for the state, allowing the procureur exceptionally to call on the force publique to enforce a decision or an approved agreement. | The remedies point in genuinely different directions — a supervisor, a change of custody, a suspension of contact, a black mark at the decision stage, or the police. Which of them is even available shapes what a parent facing obstruction should be documenting. | |
| España | Spain is the only jurisdiction here with an absolute statutory bar rather than a factor. Art. 92.7 rules out joint custody where either parent is subject to criminal proceedings for attempting against the life, physical integrity, liberty, moral integrity or sexual freedom or indemnity of the other spouse or of children living with both, or where the judge finds well-founded indications of domestic or gender violence — and counts mistreatment of animals, or the threat of it, as a means of control for these purposes. Art. 94 does the same for contact and rules it out entirely for a parent imprisoned for those offences. | Elsewhere the same facts operate as a filter or a weight. England disapplies the involvement presumption where a parent cannot be involved without risk of harm; California makes abuse history a mandatory factor under § 3011(a)(2) but permits the court to require independent corroboration before considering the allegation at all; Germany allows contact to be restricted where necessary for the child's welfare, and long-term or permanently only where welfare would otherwise be endangered. |
| United Kingdom | England is the only jurisdiction here whose statute hands the court a written checklist. Section 1(3): the child's ascertainable wishes and feelings in the light of age and understanding; physical, emotional and educational needs; the likely effect of any change; age, sex, background and relevant characteristics; harm suffered or at risk of being suffered; how capable each parent is of meeting the child's needs; and the range of powers available. California's § 3011 is the closest analogue but is expressly a floor — the court considers those factors "among any other factors it finds relevant". | The Italian, French, German and Spanish members give the standard and stop. That is not a smaller protection, but it is a different practice: a party in England or California can address the statutory factors one by one, and in the four civil-law systems the structure comes from the case rather than from the code. |
| England and California both go out of their way to say there is no equal-time default, in nearly the same breath as creating something that sounds like one. Section 1(2A) presumes each parent's involvement furthers the child's welfare, and then s. 1(2B) defines involvement as "involvement of some kind, either direct or indirect" and expressly "not any particular division of a child's time". California § 3040(e) says the section "establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody". | Both provisions are routinely quoted by a parent arguing for 50/50, and both say the opposite in terms. The English presumption is also conditional: s. 1(6) applies it only to a parent who can be involved without putting the child at risk of harm. | |
| Two English rules have no counterpart anywhere in this group. Section 1(5), the no-order principle: the court shall not make an order unless doing so would be better for the child than making no order at all. And s. 1(2), the no-delay principle: delay in determining a question about upbringing is itself likely to prejudice the child's welfare. | The first means an English court can hear a case and deliberately do nothing. Italy points at agreement from the opposite direction, requiring the judge to take note of the parents' own agreements where not contrary to the children's interest, and naming family mediation expressly as a route to them. | |
| California | California is the only member that removes considerations from the calculation by name. § 3040(b): immigration status does not disqualify a parent, guardian or relative. § 3040(c) and § 3011(b): sex, gender identity, gender expression and sexual orientation may not be considered. § 3040(d): where the effects of mental illness are found to be a factor, the court must provide a list of local treatment resources and state its reasons in writing or on the record. | It is a different legislative technique — not defining the standard, but fencing it. And § 3040 carries one more thing the others do not: an order of preference beyond the parents, to the person in whose home the child has been living in a wholesome and stable environment, and then to any other suitable person. |
The provision in each country
Each card links to the page that reproduces the official text and explains it in that country's own language.
Italia Codice Civile
France Code civil
- Art. 373-2-9 Code civil Residence may be alternating or with one parent; the judge may order alternating residence provisionally for a fixed period before deciding definitively, and organises handovers where they are unsafe.
- Art. 373-2 Code civil Separation does not change the exercise of parental authority; each parent must respect the child's bond with the other, and any move affecting the arrangements requires prior and timely information to the other parent.
Deutschland BGB
- § 1671 BGB Where parents live apart, either may apply for sole custody or for part of it; granted on the other's consent — subject to a veto by a child aged 14 or over — or where it is expected to be best for the child.
- § 1684 BGB The child has the right to contact with each parent and each parent is both entitled and obliged to it; parents must avoid anything that damages the child's relationship with the other, and the court can appoint a contact supervisor.
España Código Civil
- Artículo 92 del Código Civil Joint custody where both parents request it, and only exceptionally on one parent's application with a report from the Ministerio Fiscal — and never where there are criminal proceedings or well-founded indications of violence.
- Artículo 94 del Código Civil The court fixes the time, manner and place of visits, communication and stays, after hearing the child and the Ministerio Fiscal, and may limit or suspend them for serious or repeated breach of the order.
United Kingdom Children Act 1989
- CA 1989 s. 8 Defines the child arrangements order — with whom a child lives, spends time or has contact, and when — alongside prohibited steps and specific issue orders for particular decisions.
- CA 1989 s. 1 The welfare of the child is paramount; delay prejudices welfare; each parent's involvement is presumed beneficial but that means involvement of some kind, not any division of time; and the welfare checklist applies to contested applications.
California California Family Code
- FAM § 3011 The factors a court must consider — health, safety and welfare, a history of abuse, the nature and amount of contact with both parents, and habitual substance abuse — among any others it finds relevant.
- FAM § 3040 The order of preference for granting custody, with an express statement that the section creates no preference or presumption for or against joint or sole custody.
Where there is no answer in the code
A jurisdiction listed here is a finding, not a gap. Either its answer lives outside the corpus — special legislation, case law, municipal rules — or its law simply has no such rule.
-
New York
No page written yet
DRL § 240
New York decides custody under Domestic Relations Law § 240 and the Family Court Act. DRL § 240 is in the corpus these pages are built from — the gap here is a page, not a law. The New York pages reach § 241 (withholding visitation and maintenance) and § 72 (grandparent visitation and custody) but not § 240 itself, so New York cannot be listed as a member without a link to a page that does not exist. A page on DRL § 240 would close this.
That's the law in seven places. Now let's settle your problem.
Say what is happening. A neutral mediator hears your side and the other party's, and walks you both to a written agreement. In the advanced settings you can ask for the decision to be reasoned on the law of one of these jurisdictions.
Or open a session directly and invite the other party.
This page compares provisions of several legal systems in general terms and links to the official text of each. It is not legal advice, it does not tell you which country's law governs your situation, and it takes no account of the circumstances of your case. For a live dispute, consult a qualified lawyer in the jurisdiction concerned.