Shared physical child custody from the perspective of experts

Abstract

From January 2022, with the amendment of the Family Law Book of the Hungarian Civil Code, the legal framework for child custody after divorce has changed. Unlike the previous regulation, joint parental custody and, as part of it, shared physical custody can be ordered even at the request of one of the parents, whereas previously it was a condition that both parents agree on this. The new legislation is a way for judges to order joint parental custody and shared physical custody if both parents are found suitable to raise the child(ren). This can fundamentally change the patterns of child placement after divorce, as we have seen in many examples in several European countries. The amendment has drawn attention to the issues related to shared physical custody. In our research, we interviewed experts about their assessment of the legislative change; what effects are expected from it; how they think enforcement in this area will develop; and what they think about the social environment (roles, role perceptions, norms, etc.) that may influence the prevalence of shared physical custody. Another aspect highlighted during the expert interviews was the experience of shared physical custody so far. Among our experts were judges, lawyers, mediators, psychologists, legal historians, and representatives of NGOs, who were interviewed between December 2021 and April 2022. Our results show that in Hungary experts expect a slower uptake of shared physical custody, due to the strong influence of traditional parenting role perceptions among both the population concerned and the courts. They also stressed that shared physical custody is not always in the best interests of the child, but in many families it can be a solution to allow children to remain in close contact with their parents after the divorce. However, the interests of children and parents can be divergent and careful decisions on child custody issues are needed. It was stressed that this would require closer cooperation between judges, guardians, psychologists, and mediators.