By Robert Whiston FRSA. 26th Sept 2009
Below is simple a résumé of Sweden’s child custody law. It is not intended to be comprehensive nor a critique.
It is an English translation based on Swedish government official documents of how Sweden sees its divorce and custody polices working. At least in official circles this is how it believes parity is being achieved for both fathers and mothers after divorce.
Fathers in Sweden may disagree with their government and maintain that it does nothing of the sort. Some Swedish fathers may maintain that Sweden still has a discriminatory regime. However, compared with other countries Sweden’s approach in the 1990s does, at least on paper, show an enlightened approach towards fathers.
It might be said to provide a minimal level of equality that reformers and feminists in other countries should be reminded of whenever ‘reforms’ are being proposed.
It might also be said that Sweden has, by 2010, been overtaken by a more pro-father trend in the reforms found in countries like, for instance, Belgium and Australia.
Sweden’s Shared Parenting – Child Custody
1. Where both parents are agreed that joint custody is their preferred option with regard arrangements for their children after divorce (or a separation), a separate custody decision is not needed.
2. Married parents, in Swedish law, automatically have joint custody of their children. The process of divorce involves a mandatory reconciliation or reflection period of 6 months to reconsider the decision if a child aged under 16 lives permanently with one of them.
3. During this period the child is still deemed as being in their joint custody and it is immaterial whether the two parents live together or apart. If the parents then divorce the joint custody continues in place without having to request an order from the court confirming this (emphais has been added).
Note, Swedish ‘joint custody’ does not mean that the child lives with each parent an equal length of time (contrast that with Belgium’s new custody law of equal residence).
4. The type and form of custody must be decided and mutually agreed before the divorce petition is granted. This joint agreement must take the form of a written and signed undertaking.
5. Where the parents agree joint custody it is the court which can decide which house will be the child’s ‘residence’. This does not equate to the child living only at one address. The child is free to live at alternating address – if the parents live apart – if this is seen as in the child best interests.
6. Where residence is not alternating then ‘contact’ with the non-resident parent is encouraged. Contact is for the benefit of the child not for one or both of the parents. Both parents have a responsibility to ensure that this ‘contact’ happens. Contact is enforced by fines should breaches of contact occur.
7. If either parent cannot continue with the joint custody arrangements for the child, he or she must petition the court to dissolve the joint custody arrangements. – without this procedure the joint custody remains in force. The principle exception to this rule is where the couples have lived apart for two years or more.
8. Under Swedish law all children under 18 must be in the custody of both parents unless the parent is unmarried. A child of unmarried mother is in the sole custody of the mother. Sole custody to the mother also applies when the parent mother is cohabiting. (This latter part reflects English law prior to the Children Act 1989 – RW).
9. If parents agree to alter the custody arrangements either from sole custody to joint custody or vice versa, they can apply to the court. However the Swedish ‘social welfare committee’ must approve the changes to ensure the changes are in the best interests of the child.
10. If only one parents wishes to alter the custody arrangements the court must pay due regard to what is in the best interests of the child (avoid risk of abduction, molestation etc), paying special regard to keeping good relations with both of its parents.
11. The court has the power to impose joint custody, to refuse it, or dissolve it – even if one parent opposes one or several of the options. A pre-condition for a court to decide against the wishes of one parent is that joint custody is in the best interests of the child. However, the court can never decide in favour of joint custody if both parents oppose this option.
When deciding custody options it is possible for the court to also decide contact arrangements if joint custody is not the preferred option.
12. In exceptional circumstances, the custody of the child may, be transferred to a 3rd party, e.g. when one or both parents have neglected the welfare of the child or, put it the child at risk regarding its health and development or, abused the child.
13. In an effort to achieve co-operation and mutual agreement on all matters matrimonial, all local authorities in Sweden offer counselling and advice on custody, residence, contact etc.
Before a court can issue a custody order it must ensure that both parents have contacted the local authority and sought expert advice on how to handle their divorce/separation and the custody of their children.
14. The local authority can, if the parents cannot agree upon a course of action, present its views and findings/recommendations to the court prior to judgment.
15. In Sweden ‘Legal Aid’ is not normally provided for divorce and custody cases.