Entrusting a Child to Alternating Custody – How Does It Work in Practice?

If the parents of a minor child divorce, the court will, in the divorce judgment, also determine the exercise of parental rights and responsibilities toward the child for the period after the divorce.

In the judgment, the court will primarily determine which parent the minor child will be entrusted to for care, and who will represent the child and manage the child’s property. The court will also specify how the parent who was not granted custody will contribute to the child’s maintenance, or, if the parents have reached an agreement, it will approve the parents’ agreement on the amount of child support. The court may regulate parental rights and responsibilities to the same extent for parents who were not married.

Read also: Joint Personal Custody of a Child by Both Parents

With the adoption of Act No. 217/2010 Coll., which amends and supplements Act No. 36/2005 Coll. on the Family and on the Amendment and Supplementation of Certain Acts, as amended (hereinafter referred to as “Act No. 217/2010 Coll.”), the legal concept of alternating personal custody of a child (hereinafter “alternating custody”) was introduced into the Slovak legal system. According to the Explanatory Report to Act No. 217/2010 Coll., the aim of introducing this provision was to ensure that children do not lose contact with one of their parents as a result of divorce and to safeguard the parental rights of both parents.

The essence of alternating custody lies in the alternating periods during which the child is entrusted to the personal care of one parent and then the other. The duration of custody for each parent is precisely defined and does not need to be of equal length. Since the law does not specify the duration, it is determined by the court’s decision or by court-approved agreement between the parents.

This section explains the concept of alternating custody in the upbringing of a child, the process and conditions for the court’s decision on alternating custody, and also explores psychological perspectives on this legal arrangement.

One of the ways a marriage can be dissolved is through divorce. If minor children are involved, pursuant to Section 100 of Act No. 161/2015 Coll. on Non-Contentious Civil Procedure, as amended (“Non-Contentious Civil Procedure Code”), “divorce proceedings are linked with proceedings on the regulation of relations between the spouses and their minor children for the period after the divorce.” The substantive regulation of contact with a minor is governed by Sections 24 et seq. of Act No. 36/2005 Coll. on the Family, as amended (“Family Act”). According to the Family Act, “in a judgment dissolving the marriage of parents of a minor child, the court will also regulate the exercise of their parental rights and responsibilities toward the minor child for the period following the divorce. The court generally decides simultaneously in the divorce proceedings on all of the spouses’ joint minor children, regardless of whether they were born during the marriage or before it.” (B. Pavelková: Commentary on the Family Act. C.H.Beck. 2013). It should be noted that the court may only decide in respect of children who have already been born.

If the mother is pregnant during the divorce proceedings, regardless of the stage of pregnancy, the court cannot issue a judgment that includes the unborn child. According to Act No. 40/1964 Coll. the Civil Code, as amended (“Civil Code”), an unborn child does not yet have legal capacity (legal subjectivity), which is only acquired upon birth. In such cases, it is at the court’s discretion whether to suspend the proceedings until the child is born or to rule only on the care of the already born minor children.

The legal regulation of custody after divorce does not apply to individuals who have already reached the age of 18 and thus attained full legal capacity. If a child reaches the age of majority during the proceedings, the court must obligatorily discontinue the proceedings. However, if the child comes of age after the court’s decision on parental rights and responsibilities becomes final, the effect of the custody ruling ceases, but the rest of the parental rights and responsibilities remain intact. This particularly applies to the duty of maintenance, which remains a core element of parental rights pursuant to Section 28 of the Family Act.

The institute of alternating custody is a relatively new concept in the legal system of the Slovak Republic, introduced only with the 2010 amendment. To better explain, “alternating custody” refers to a situation in which the parents of a child do not live in the same household, and the child therefore lives alternately with each parent during regular, scheduled time periods. The frequency of personal custody varies and depends entirely on the parents’ agreement. From a legal perspective, it is not possible to determine a universally optimal setup for alternating custody—this is more a psychological question. The psychological aspects of alternating custody will be discussed in the following text.

The time the child spends with each parent can be arranged in various ways. In practice, a common model is the 2-2-3-2-2-3 week cycle. This schedule avoids overly short or long intervals, allowing for a smooth transition between households. However, monthly, biweekly, or weekly exchanges are also possible.

Alternating custody places high demands on both parents. Below, we will summarize the advantages and disadvantages of alternating custody.

Among the advantages of alternating custody are:

Among the disadvantages are:

The subject of this article is primarily the interpretation of Section 24(2) of the Family Act, the full text of which is as follows: “If both parents are capable of raising the child and if both parents are interested in personal custody of the child, the court may entrust the child to alternating personal custody of both parents, if it is in the interest of the child and if the child’s needs will be better secured in this way. If at least one parent agrees with alternating personal custody, the court must assess whether alternating custody is in the best interest of the child.”

First, we would like to draw attention to the second sentence of the cited provision. From this it is clear that the lack of consent of one parent is not an obstacle to the imposition of alternating custody. This applies particularly in cases where both parents are interested in raising the child, but one of them seeks exclusive custody. Most commonly, this is the parent who personally and predominantly cares for the child and thus rejects the idea of alternating custody. The law takes these scenarios into account and does not consider the opinion of the so-called “preferred parent” to be decisive, as unjustified opposition to alternating custody is generally viewed as an abuse of the right to raise the child. In these cases, the decisive factor is the assessment of the child’s best interests. It is solely for the court to evaluate whether alternating custody is the best solution for the child.

In the decision-making process, the court must also consider whether the parent is able to cooperate with the other parent in the upbringing of the child, i.e., whether the parent is capable of compromise. If the court concludes that the parent is not able to cooperate without clear justification, it is considered that the parent is not fit to raise the child. However, the wording of the second sentence should not be interpreted to mean that if the parents agree on alternating custody, the court must automatically order it. The court is always obliged to examine the best interests of the minor child. This duty stems from the Convention on the Rights of the Child, which states that the best interests of the child shall be a primary consideration to which the court must give due attention when making its decision.

The substantive legal conditions for ordering alternating custody include:

When deciding on alternating custody, the court must take into account the following factors:

It is important to note that alternating custody does not always suit the personality of the child. Given the child’s age, they should have a certain degree of participation in non-contentious proceedings, and it is therefore appropriate for the court to hear the child’s opinion. If the child does not agree with alternating custody, the court must examine the reasons behind such an opinion. However, the child must always be approached in a manner appropriate to their level of emotional and intellectual maturity.

From a psychological perspective, alternating custody is not suitable for children with behavioral disorders, as these children require a stable caregiving environment. Alternating custody is also not appropriate when the parents live far apart and the child would be required to switch educational institutions. It is essential to create a stable environment for the child and preserve their social connections with friends and extracurricular activities.

Alternating custody must not be viewed as a means to avoid paying child support. In most cases, however, when alternating custody is ordered, the court does not determine child support. This generally applies in situations where both parents spend an equal amount of time with the child—e.g., each parent personally cares for the child for two weeks of the month.

If the time spent with the child is not equally divided, the court will establish a maintenance obligation in the decision on alternating custody. Furthermore, the court must also determine which parent will receive parental benefits and which parent will be entitled to claim the tax bonus for the child.

A court decision establishing alternating custody may contain the following operative parts (this is only an example; the decision will be individualized in each case):

According to some psychologists, alternating custody can be a good solution in many cases. However, it is always essential to consider the opinion and needs of the minor child. If alternating custody does not suit the child, it can cause more harm than benefit. Some traditional psychological views—such as the belief that a child needs a single bed, a single home, and consistent rituals—are now considered outdated by many experts. Modern approaches suggest that stability does not necessarily mean staying in one place, and alternating custody can also be arranged by having the parents rotate homes instead of moving the child. Additionally, psychologists argue that a child’s age is not a decisive criterion when assessing the suitability of alternating custody. The key lies in the emotional and psychological readiness of the child, as well as the ability of both parents to cooperate effectively and prioritize the child’s well-being.

In practice, situations frequently arise in which the so-called “preferred parent” opposes the imposition of alternating custody, primarily due to conflicts between the partners and a lack of willingness to communicate about the needs of the minor child. In Slovakia, alternating custody is not the preferred model of child care. In judicial practice, custody is most often awarded exclusively to the mother. Alternating custody is proposed in the majority of cases by fathers, while mothers are more often only willing to agree to it rather than initiating it themselves. This reflects broader social patterns and attitudes regarding parental roles and responsibilities after divorce. The courts typically consider alternating custody only if there is clear evidence that it is in the best interest of the child and both parents are capable and willing to cooperate effectively.

According to Section 24(2) of Act No. 36/2005 Coll. on the Family and on the Amendment and Supplementation of Certain Acts: “If both parents are capable of raising the child and if both parents are interested in personal custody of the child, the court may entrust the child to alternating personal custody of both parents, if it is in the best interest of the child and if the child’s needs will be better ensured in this way. If at least one parent agrees to alternating custody, the court must assess whether alternating personal custody is in the best interest of the child.”

From the cited provision, it follows that the court will decide on alternating custody if:

The court is always obliged to examine whether alternating custody is in the best interest of the child and whether the child’s needs will be better ensured under such an arrangement, even in cases where only one parent agrees to alternating custody and the other parent disagrees.

This legal framework is intended to prevent situations in which one parent could block a decision on alternating custody—e.g., out of revenge or hostility toward the other parent—even if alternating custody would serve the child’s best interests.

Of course, when assessing whether to impose alternating custody despite one parent’s objection, the court also considers the relevant reasons for the opposing parent’s disagreement. The aim is to avoid arbitrary decisions and ensure that the chosen custody arrangement genuinely supports the child’s well-being and development.

When determining child support in cases of alternating custody, the court primarily considers the length of time the child is entrusted to the personal care of each parent. This factor is especially important in situations where the child is not placed with each parent for equal durations within the alternating custody arrangement.

The court may also decide not to impose child support during the period of alternating custody. Such a decision is justified particularly in cases where the child is entrusted to both parents for equal periods of time and the financial circumstances of the parents are comparable.