Parental authority - Peggy Lethier avocate

Parental authority

French Law

Parental authority is generally shared by both parents. That means all decisions concerning the child’s life after a divorce are still taken by both parents. This includes residence, schooling, higher education, health, budget, activities and, if applicable, the management of their assets.

Parental authority issues such as the child’s residence, the right of the non-custodial parent to visits and overnight stays, the contribution towards child maintenance and education are matters for family-law judges, (Juges aux affaires familiales). They will ensure that the interests of children are safeguarded, even in cases where parents agree on parental authority arrangements. If parents are unable to reach an agreement, the judge will take into account a range of criteria before making a decision.

First, the habits and arrangements already agreed between the spouses will be considered, but be aware that the judge will seek to maintain a degree of continuity in a child’s life. The judge also takes into consideration the age of children, any wishes they express during the child hearing (audition de l’enfant), the availability of each parent as a factor of their personal and professional circumstances, and the outcomes of any expert assessments the judge may have ordered (e.g. welfare, medical, psychological, etc.). Finally, under French law brothers and sisters (and also half-brothers and sisters) are not to be separated unless it is in the best interest of the child to do so.

Custody will either be given to one parent, or the children will live with both parents alternately (garde alternée). For example, swapping over weekly, or sharing half of the week with each. Parents must be able to communicate easily and live close enough to each other to prevent the children from having to make long trips. There is a wide range of opinions regarding shared custody. Each family and situation being different, this option will either be a very positive experience for both you and your children, or it will be a difficult one.

English law

Defined in The Children Act 1989, English Law generally requires both parents to take part in important decision-making about a child’s life, such as residence, education, travel and treatment of any health issues. It works on the assumption that both parents are perfectly capable of making these decisions together, even if they are going through a divorce or separation. If this is not the case, a judge may be called on to issue one or more of the following Orders :

  • A Child Arrangement Order that defines these key decisions, such as who has custody, visiting arrangements for a parent, and child maintenance.
  • A Prohibited Step Order that stops the other parent from making a decision about the child’s upbringing.
  • A Specific Issue Order that focuses on a specific question such as the health of the child (a surgery for example) or his school

The welfare of the child being the most important factor, the judge will look at what is called “The Welfare checklist” :

  • The wishes and feelings of the child, in light of the child’s age and understanding.
  • The child’s physical, emotional and educational needs.
  • The likely effect on the child of any change in their circumstances.
  • The child’s age, sex, background and any characteristics the court considers relevant.
  • Any harm the child has suffered or is at risk of suffering.
  • How capable each of the child’s parent’s (and any other relevant person in relation to whom the court considers the question to be relevant) is of meeting the child’s needs.
  • The range of powers available to the court.

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