Taking a child on a vacation abroad, was not considered child abduction: what is allowed under joint custody?

When parents divorce each other, a decision has to be made regarding with whom their mutual children will live, the amount of childcare payable, visitation and custody. In Finland most parents manage to set up an agreement regarding these issues in co-operation with the Child Welfare Officers, without involvement from the courts. But if the parents’ relationship is strained and the level of flexibility is miniscule it is recommended to hire a lawyer to draw up the agreement – a well drafted agreement can save the parties from many headaches i the future.

I quite often get phonecalls from worried parents, wondering if they can go on holiday abroad with the children, without the explicit approval of the other custodial parent. Or they are wondering if the can go to the country house,  during the period when the child is entitled to spend time with the other custodial parent, but this parent has not verified nor made arrangements as regards to the visitation – at least not within the timeframes hopefully spelt out in the agreement.  The parents want to know if their actions can be seen as an attempt to obstruct the right of visitation or even worse – child abduction.

The Finnish Supreme Court tried a very interesting child abduction case KKO 2015:56 (HD 2015:56) where the concept of joint custody was discussed. What is allowed without the explicit approval of the other custodial parent, and what and whose rights are the provision of child abduction protecting?

Short summary of the case (KKO 2015:56)

During the summer holidays a mother brought her children on a two weeks vacation to Switzerland, without the father’s explicit approval. According to the agreement on visitation, the children were entitled to visit their father a couple of days during this period. The father brought child abduction charges against the mother.

The district court found the mother guilty of child abduction. She was later acquitted in the court of appeal. The case ended up in the Finnish Supreme Court in 2015.
Chapter 25 section 5 and 5a of the Finnish Criminal Code cover child abduction:
Chapter 25 § 5a
“If in the unauthorized taking of the custody of a child (1) the rights of custody of the child are violated by the removal of the child from his or her state of residence or by failure to return the child to said state, (2) at the time that the child was removed or the child was failed to return to his or her state of residence, the rights of custody of the child had in fact been used or would have been used but for the removal or failure to return.”
The Supreme Court stated that the paragraph on child abduction is meant to protect the child’s right to a continuous custodial relationship. A short trip, without the explicit consent of the other custodial parent, does not interrupt the possibility to exercise the rights and obligations connected to the concept of custody. As a joint custodial parent you have the right to share the decision-making rights for important decisions affecting the child such as place of residence, religion, healthcare, schooling etc.
The father’s custodial rights were not in any danger due to the short trip, and the childrens’ custodial relationship to their father was constant despite the holiday. The mother in this case had no intention of for example changing the children’s place of residence or enroll them in a school in Switzerland. But what if the trip had been an attempt to convert the children into for example muslims, chatolics or scientists? And let’s say that the children did convert. Would this have changed the outcome of the case?
I dear predict that we are going to see more of these cases, purely based on the fact that our world is becoming more and more international. We don’t marry the boy or girl next door as often as before, but find love in other cultures. We might be broadminded when it comes to many things, but children tend to bring us back to where we came from …
SMLXL

 

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