The Slovak Spectator spoke with Peter Báňas, the head of the Justice Ministry's international law and EU integration department, on the legal aspects of child custody cases of international marriages which end in divorce.
The Slovak Spectator (TSS): Here's a hypothetical situation: A Slovak and an American get married, have a child, then divorce. The Slovak spouse is given custody with the American spouse given visitation rights. The American spouse then leaves for America. What happens to the American's visitation rights?
Or, if the American is given custody and that spouse then decides to leave for America with the child, how does this affect the Slovak's visitation rights?
Peter Báňas (PB): In both situations it's the same. It's not important whether a spouse decides to leave the country, the spouse still has the right to visit the child, but it's the visiting spouse's problem how he or she will use that right.
But the problem has a wider context. The court in which the divorce is ruled on decides the visitation rights, at what intervals, whether it will be twice a month, or during summer holidays only, and so on.
TSS: What law applies in this case? American law, Slovak law or the law from the country where the wedding took place?
PB: Where the wedding occurred is not a criteria. An American and Slovak can get married in Sweden if they choose. So it's irrelevant where they got married. What's important is where they file for divorce. If they file in Slovakia, Slovak international legal norms will be applied. If they file in America, it would be done according to American international legal norms.
TSS: What would happen if the American receives custody and he or she then decides to leave Slovakia for America? It could be argued by the Slovak that he or she has been effectively deprived of visitation rights because of the long distance between the two countries.
PB: And if the parent with custody wasn't allowed to go to America, it could also be argued that his or her right to freely choose a country in which to live was being violated. This is why the court where the divorce was filed has to decide the details of the visitation rights.
Considerations are always taken with the best interest of the child in mind. This principle comes from international agreements on children's rights. The court does not think about what's right for the parents - that's their problem.
Divorced couples can deal with the distance by agreeing to have the child for two months at once instead of regular bi-weekly visits. Of course, it's different if a spouse who only has visitation rights takes the child to his or her country and never returns the child.
TSS: What would the procedure be in this case?
PB: Slovakia became a member of an international agreement on international kidnapping on February 1. The signatory member states of this agreement have to return kidnapped children. If this situation happened here, as in the case of Mrs. [Eva] Slobodová (see story, page 3), and had there not been any related Slovak court decisions in the meantime, Slovakia would have had to return the child within a half year from when the child was last in contact with the other parent.
TSS: You mentioned the case of Mrs. Slobodová. Do you have information about how this case will be settled?
PB: That's for the courts to decide. I can't tell you what will happen. I haven't studied the case so I don't know the details. But I know there are a number of unanswered questions in this case. For example, at that time (when Slobodová left America, in 1998) Slovakia was not a member of the international kidnapping agreement.
Also, the 'best interest of the child' principle says that a kidnapped child must be returned within six months from when the child last saw the other parent - but in this [Slobodová] case, taking the child away now may not necessarily be best for the child.
In general, after six months in a new country, the child is already attached to the new place, he or she has friends in school, and so on. To then violently take the child away and return it to the parent with custody rights in the original country, even if it's done justifiably, probably wouldn't be the best thing for the child.