Rights regarding custody and parental authority in Belgium
Joint parental authority is the rule: both parents retain their rights and duties towards the child after separation, and make important decisions together (school, health, religion, travel…).
Distinct from parental authority, residence refers to the child's actual place of living.
The distinction between parental authority and residence comes with a practical mechanism, the presumption of agreement. Under article 373, as regards third parties in good faith (a school, a hospital, a bank), each parent is deemed to act with the other's agreement when performing an act of parental authority alone. Article 374, § 1 specifies that this presumption continues to apply when the parents no longer live together.
A parent enrolling the child at school alone therefore need not produce the other's written consent: the third party may rely on it. The rule makes daily life easier, and it also explains why some decisions are taken without the other parent being informed.
The law offers correctives. In case of disagreement, either parent may seize the family court, which may authorise one parent to act alone for one or more specified acts. Conversely, the court may designate the educational decisions that may only be taken with both parents' consent.
Shared residence is favoured
Since the law of 18 July 2006, equally shared residence (50/50, usually alternating weeks) is the arrangement to be examined as a priority, provided it serves the child's best interests.
This priority examination is subject to several conditions. It applies only failing agreement: where the parents agree, it is their agreement that is approved, unless manifestly contrary to the child's interests. It also takes place at the request of at least one of the parents, so it must be asked for; the court does not do it of its own motion.
Nor is the priority examination an obligation to grant equal residence. If the court considers it is not the most appropriate arrangement, it may set unequal residence, by a specially reasoned judgment taking account of the concrete circumstances, of the children's interests and of the parents'.
A recent addition concerns siblings. Since 19 June 2021 the same article provides that, where the parents have several children, the court tends towards adopting the same arrangement for all the siblings, and that it specifies where appropriate how the siblings maintain personal relations with one another. The law that introduced this rule also, in the same movement, granted siblings their own right to maintain personal relations with each other at any age.
Non-equal residence: in which cases?
Primary residence with one parent may be ordered if:
- distances between residences are too great
- the infant's age requires it
- serious problems justify it (violence, addictions…)
- the parents agree on another arrangement
Unequal residence leaves parental authority intact. The two questions remain separate, and authority stays joint by default even where the child mainly lives with one parent.
Exclusive exercise of parental authority is a separate measure, which the court may entrust to one parent failing agreement or where the agreement appears contrary to the child's interests. Even then, the law protects the parent who does not exercise it: the court sets the terms on which they maintain personal relations with the child, and those relations may be refused only on very serious grounds. They also retain the right to supervise the child's education and may obtain all useful information from the other parent.
A practical point is settled at the same time. The judge determines, in every case, not only the residence arrangements but also the place where the child is registered as their main residence in the population registers. That choice carries administrative and tax consequences, to be weighed when the decision is taken.
Other custody arrangements
Other formulas exist: primary residence with extended weekends, split custody (rare), alternating monthly residence, etc. Everything is negotiable in the child's best interests.
How Sarah Satti can help you
- Advice on the custody arrangement best suited to your situation
- Amicable negotiation with the other parent
- Representation before the Family Court in case of dispute
- Request for modification of the custody arrangement if the situation changes
- Detailed parenting plan (holidays, public holidays, birthdays…)
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