What happens to the child in a divorce if neither parent wants to care for the child or the court decides that neither parent can care for the child?
For a child or teenager, parental divorce is not just a matter of 'adult papers', lawyers and courtrooms. It is often one big earthquake and a very concrete, paralysing fear. Dramatic questions arise in the young person's mind: "Will anyone even want to take care of me?", "Will I have to go to strangers or an orphanage?", "Will the judge even ask me what I think about all this?", "What if everyone around me decides about my life, but completely without me?".
Such concerns are completely understandable. If you are a young person reading this right now - we want to make it clear to you right from the start: your parents' divorce is never, ever your fault. It is the adults who have failed to deal with their relationship, their emotions and their problems. The child is not the reason for their separation and should not have to pay for it with feelings of rejection, overwhelming anxiety or loneliness.
In turn, the most important message from the legal point of view is that the Polish legal system does not presuppose and does not allow a minor to be left "alone". Parental authority is in Polish law not only a privilege of adults, but above all their absolute duty. It includes the custody of the child's person and property and the upbringing of the child with respect for his/her dignity and rights. If the child's welfare is threatened in any way - because the parents fail, are unwilling or unable to fulfil their role - the state, and more specifically the guardianship court, has a duty to react immediately.
At the same time, something needs to be said honestly and openly that many children and adolescents experience very painfully in their clash with the justice system: the provisions in the codes are one thing, brutal court practice is another. The law provides for the child to be heard and for his or her views to be taken into account. In practice, however, it is sometimes the case that this hearing does not take place and the minor's voice does not resonate in the courtroom as much as it should. Therefore, this article will not promise you unrealistic things, will not colour the reality or icing up difficult cases. Instead, it is intended to explain calmly, step by step, what the hard rules are, what the court can actually do, what rights the child has and where to look for real help when reality turns out to be much more difficult than the rules in the books.
What does the court determine in a divorce when there are children in the family?
In order to understand what can happen to a child in an extreme situation, it is first necessary to know what the standard procedure is. In a divorce case, the court is not only concerned with the formal end of the adults' marriage. It has an absolute duty to decide what the situation of joint minor children will be after the separation. When issuing a divorce decree, the court has to decide on several key issues: parental authority, the place of residence of the child, contact with the parent with whom the child will not live on a daily basis, and maintenance.
If the parents have presented an agreement (often called a parenting plan) to the court that is consistent with the child's best interests, the court will usually take into account their wishes and leave full parental authority to both. If there is no such agreement, the parents are at loggerheads with each other, or their plan does not, in the court's view, serve the child, the judge may give the exercise of authority to only one parent and limit the authority of the other parent to certain, lesser powers (e.g. co-decision only on major medical procedures or choice of school).
Many people type the question "with whom does a child live after divorce?" into a search engine. The answer is that there is no one automatic scheme. The court looks at the welfare of the child, the child's daily needs, sense of security, emotional stability and who has actually had primary custody of the child until now. Divorce does not immediately mean that the child is taken away from either parent, but neither does it mean that the child can sit back and simply 'choose' who he or she wants to go to. The court must examine the whole situation of the family.
Parents "won't" and parents "can't" - are two different situations
When we talk about the fact that a child may not have custody after divorce, we need to make a clear distinction between several situations. From the young person's point of view, the pain may be similar, but from the point of view of the court, the procedures and the law - they are completely different stories. It is important not to mix them up because they determine what the judge will do.
When parents simply don't want to take care of their child
This is the most dramatic scenario and strikes at the psyche of the minor. It happens that in the course of divorce, one of the parents, or in extreme cases both, simply do not want to fulfil their responsibilities. They push the child away from themselves, treat the child as an obstacle to arranging a new life with a new partner, treat the child as a financial problem or maliciously 'shift' the responsibility to the other party ('I won't take him, let her worry about him'). If the court realises that a parent knowingly and voluntarily abandons his or her responsibilities, this constitutes gross neglect. In such a situation, the court may deprive such a parent of parental authority altogether, as he or she is endangering the child's safety and emotional stability by his or her behaviour.
When objective reasons make it impossible for parents to care for their child
It is a different matter when parents are unable to care for their offspring for reasons beyond their control or because of profound life crises. We are talking about situations such as serious physical illness, deep mental crises, the need for long-term hospitalisation, disabilities that make care impossible, but also about pathological situations: active alcohol or drug addiction, domestic violence or imprisonment. In these cases, a parent may want to, but is objectively unable to provide a safe roof over the child's head and a daily lunch. Here, too, the court must step in, but its action may consist of suspending parental authority (e.g. for the duration of a prison or hospital stay) or limiting it until the parent has recovered (e.g. completed drug treatment).
When conflict destroys the child (fighting over a minor)
There is a third situation, which from the outside may look similar, but legally is different. The parents want very much to "win" the case for the child, they fight fiercely for the child, but their conflict is so toxic and strong that the welfare of the minor is relegated to the background. Then the problem is not that nobody wants the child. The problem is that the child is brutally dragged into the adults' war, is manipulated, forced to choose sides, and his or her psyche is destroyed. The court may find that although both parents have the housing and financial conditions, their viciousness means that neither of them can protect the child's welfare at that particular moment. The court must distinguish between these situations. In each of them, the starting point for the guardianship court is the same: the most important thing is not the interests of the offended parents, but the peace and welfare of the child.
What if the court decides that neither parent can have custody?
If the welfare of the child is grossly endangered, the guardianship court will make appropriate orders. It is not the case that every difficult situation in the family immediately ends with the most radical solution, of which young people circulate legends. The Family and Guardianship Code provides for a whole ladder of protection measures - from the mildest to the most severe.
Before the court decides to separate a child from his or her biological parents, it may use other forms of support and control. It can commit the parents to a specific course of action, such as undertaking psychological therapy, attending parenting skills workshops or addiction treatment. It can direct the family to work with a family assistant who will visit the home regularly and help with daily difficulties. A very common solution is to set up a probation officer who checks from time to time that no harm is being done to the child at home and makes detailed reports to the judge.
Only when these measures are not enough, the parents do not cooperate, or immediate protection of the child from violence or extreme neglect is needed, does the court reach for the heaviest tools. If the situation is so serious that the adults do not provide security or basic care for the child, the court can limit, suspend or completely terminate their parental authority. This can be ordered in a separate order or in the divorce judgment itself.
For the young person, the key conclusion from this is one: the legal system assumes that the state never moves past a situation where adults do not give you a safe home. This does not mean that every decision of the judicial machinery will be 100 per cent perfect. However, it does mean that there is no loophole where you disappear. There must always be someone legally responsible for you.
Does a child go into foster care after divorce?
This is one of the most common and dreaded questions. The answer is no, the mere divorce of the parents absolutely does not automatically mean foster care. The placement of a child in any form of foster care can only take place when all previous measures to protect and assist the family have failed to remove the danger.
The exception is when the need for immediate safety results from a direct threat to the child's life or health (e.g. domestic quarrels with the use of dangerous tools, complete abandonment of a child in an empty flat). It is also worth reassuring that Polish law categorically prohibits taking children away and placing them in foster care solely because of the parents' poverty and deprivation - in such situations, the state is obliged to help the family financially, not to break it up.
When the court decides that a child cannot stay under the roof of either biological parent, it looks for a new place for him or her. And here is an extremely important piece of information that can reassure many children and teenagers: the court and the social welfare system almost always first look for a solution with the minor's immediate family. Before the court sends the child to an institution (i.e. a popular 'children's home') or to unrelated strangers, it will examine whether a so-called 'related foster family' can be created. In practice, this usually involves grandparents, older siblings, sometimes a close aunt or uncle. Only if for some reason this is not possible are other forms of care considered.
This has a gigantic psychological impact. The divorce itself and the crisis at home is a great trauma for the child. Staying in a familiar environment, with a beloved grandmother who bakes familiar cakes and allows you to meet your existing friends, is sometimes much less of a burden than a sudden move to a completely foreign place. The guardianship courts are well aware of this.
What is foster care and what is legal guardianship?
On the internet and in adult conversations, these terms often get mixed up and legally do not mean the same thing. It is worth explaining this briefly and clearly.
- Foster care is simply an organised form of physical, daily care for a child when the biological parents are unable to raise the child. It refers to who makes the child's breakfast, who watches over homework and with whom the child has his or her room. This can be a foster family, a family home or an institution.
- Legal guardianship is a separate institution. It is established when neither of the biological parents has parental responsibility (either because they have died or because the court has deprived them of parental responsibility). The court then appoints a legal guardian. This is a person who not only physically takes care of the minor, but also becomes his/her legal representative. It is the legal guardian who signs consents for school trips, medical operations or opening a bank account for the teenager.
In practice, the two situations often occur together - for example, the grandmother becomes both a foster family (has custody) and legal guardian for the grandchild.
Children's rights in divorce - who to live with and can a parent be chosen?
We come to the issue that is of most interest to minors themselves. Can a teenager say which parent he or she wants to live with after a divorce, and is it ultimately up to him or her to decide?
The answer is yes, the minor has every right to say who he feels safer with, who he has better contact with, where he has better living conditions, peace and quiet to study, or why he is afraid of one of the solutions proposed by his parents. This position of the teenager can be of colossal importance to the court. However, the final decision is always and absolutely up to the court, not the child himself.
Why is this? Not to take away the child's agency, right to self-determination or to disregard them. The law thus protects the child from shouldering an unimaginable burden. The child is not there to settle the dispute and decide which parent 'wins' or 'loses'. If the law allowed the child to make his or her own hard choices, parents could put even more pressure, bribe and emotionally blackmail them. Blaming a young person for a decision is cruel. Therefore, the honest message a child should hear is: "Your opinion is extremely important to us and the judge will give it careful consideration, but the onus is on the judge to make the final decision".
From what age does the child's opinion matter to the court?
This is one of the most persistent myths on the Polish internet. Many people, even on legal forums, claim that "from the age of 13 a child chooses for themselves who they live with" or that "when you turn 15, the court has to do what you say". This is not true. There is not a single rigid, mathematical age limit in Polish family law.
The Code of Civil Procedure and the Family Code say that the court should hear the child and take into account his or her reasonable wishes if his or her mental development, state of health and degree of maturity allow this. This means that the court looks at the individual person and not just at his birth certificate. In practice, it is obvious that the judge will treat the opinion of an emotionally mature 16-year-old almost bindingly, because a teenager of that age would arrange relationships in his or her own way anyway, and no one will forcibly keep him or her in the home of a parent. On the other hand, the opinion of an 8-year-old can also be examined (e.g. by psychologists) to understand with whom the child has a stronger bond, but a young child cannot predict the long-term consequences of his or her preferences.
Does the court have to hear the child? Theory versus brutal practice
From a regulatory point of view, the situation is relatively clear. The court in cases involving a minor should hear them. According to the guidelines, such a hearing does not take place in a threatening courtroom, where a judge in a toga sits behind a table and hostile parents with lawyers on the sides. The hearing takes place in a closed session, often in specially adapted, friendly rooms (so-called blue rooms). It is attended only by a judge, sometimes in civilian clothes, and an expert psychologist who ensures that the child is not emotionally harmed during the questions. Parents and their attorneys are not present.
But what does this look like in practice? Unfortunately, often strikingly different. It happens very often that the courts abandon the direct hearing of children and young people. Why? The judges usually argue this on the grounds of wanting to protect the young person. They recognise that dragging a child to court, even to a friendly room, is generating a great deal of stress and risks embroiling him or her in a conflict of loyalties (the child is afraid that what he or she says will hurt mum or dad). Instead, the courts prefer to refer the whole family for an examination to the Judicial Panel of Specialists (ICS). There, psychologists and educators spend several hours with the family and, based on tests and interviews, write an opinion for the court about what the child wants and what the relationship is like.
For many teenagers, this is a painful clash with reality. They find out about the sentence even though they feel that no one from the court has spoken to them personally and seriously. This reinforces in them anger and a sense of being treated in an object-like manner.
Do the courts treat children's letters as manipulated?
Frustrated young people often take matters into their own hands and decide to write a letter to the court. In it, they describe their feelings, grievances and clearly declare with whom they want to live. Does such a letter solve the case?
Unfortunately, and this is where the problem arises. Courts and experts generally approach such written statements with extreme caution. Court practice has repeatedly shown that in situations of acute divorce conflict, these letters are often not the child's own creation. Sometimes they are dictated by the parent with whom the child is currently staying, or are written under extreme emotional pressure or blackmail. Therefore, the court may look at the letter and consider it evidence not of what the child wants, but of the powerful manipulation the child is being subjected to by an adult.
It is frustrating for an honest teenager who has written the truth straight from the heart, but that is the reality of the law. The letter may find its way into the case file, but it is rarely the crown, the only evidence conclusive of a conviction.
What if the court does not listen to the child despite the child's request?
It is a situation that creates a powerful feeling of helplessness. If you are a young person and feel that no one is taking you seriously, however, you are not without tools. Here is what you can, and indeed should, do:
Firstly, talking to a trusted professional. Seek support from an outsider: a school psychologist, an educationalist, a tutor with whom you feel safe. These are adults who are not party to the court, but should know how the system works. The psychologist can give an opinion which, through one of the parents, will go to court. He or she can also make your parents aware of how much their wariness is damaging your psyche.
Secondly, cooperation with the curator. If a probation officer has already been assigned to your family, remember that this is not your enemy. They are the ears and eyes of the judge. Talk to the probation officer frankly in private, explain your position. The probation officer is obliged to write a note of the interview, which will go directly to the judge's desk.
Thirdly, you can report the problem to external institutions. We write about who has the right to intervene later in the text on supporting institutions.
Can a child refuse contact with a parent if he or she is afraid of him or her?
This is another extremely difficult issue. Once the residence has been established, the court establishes the so-called contacts - that is, the child's visitation schedule with the other parent. Often the minor asks: can I not go there?
A very clear distinction has to be made here between mere teenage resentment and real fear. A refusal to go to the father or mother because "there I have to clean my room and at the other parent's I play on the console" is no argument for the court to change contact. Contact is the child's right to build a relationship with both adults.
The situation is completely different when a child genuinely is afraid parent, feels unwell around him or her, experiences verbal or physical violence or witnesses his or her addictions. If contact seriously jeopardises the welfare of the child, the guardianship court is in principle obliged to intervene. He or she can limit these contacts, order them to take place only in the presence of a guardian (outside the home) or, in extreme cases, prohibit them altogether. The child does not cancel the contacts in the same way as a meeting with a friend, but his or her well-founded fear is grounds for one of the parents to make a formal request to the court to change the contact order. However, it is also possible to imagine a situation in which the court would treat the letter the other way round - it would be additional evidence of the other parent's manipulation of the child.
Can a teenager independently hire a lawyer in secret?
Many teenagers look online to see if they can take their savings, go to a solicitor or barrister and have them act on their case against their parents. The short answer is: not the way we imagine it in the movies.
In Polish law, a person before the age of 18 does not have full so-called legal capacity. A child up to the age of 13 does not have it at all, and from 13 to 18 has it limited. This means that a young person cannot sign a binding contract with a law firm for representation before a court or even simply use our services.
However, the law provides for another protection mechanism. If the child's interests are clearly at odds with those of both parents, or if neither parent can adequately represent the child in a particular case, the guardianship court establishes a so-called "guardianship court". the child's representative (or a guardian to represent the minor). Such a function is almost always performed by a professional lawyer who has the appropriate training in family law. Such a lawyer does not, as a rule, listen to the instructions of the parents, but is obliged to be guided solely by the welfare of the child. As far as possible, he or she will interview him or her and, as a rule, will above all ensure that the minor's voice is given due consideration in the room.
Who can help a child if no one listens to them? Telephones and institutions
When the situation at home is hopeless and fighting in court seems to ignore the young person's welfare, it is time to reach out for outside help. Sometimes the most important first step is not to write pleadings, but to contact the right people:
- Child and Youth Helpline: 116 111 (run by the Give Children Strength Foundation). It is completely free, open 24 hours a day and anonymous. It is staffed by psychologists who do not judge but can professionally advise on what to do in a specific legal and domestic situation.
- Children's Ombudsman Helpline: 800 12 12 12. This is not only psychological support, but also the possibility of activating the legal machinery. The Children's Ombudsman in blatant cases of violation of a minor's rights can officially proceed with a court case, sometimes it is worth writing to him.
- Social Assistance Centre (OPS) / District Family Assistance Centre (PCPR). These institutions have a duty to react when things go wrong in a family. They can appoint a social worker to inspect the situation.
- Every adult. According to the law, any person who knows that a child is being harmed has a duty to inform the guardianship court. This could be a neighbour, a teacher or a coach from a sports club.
Can the child's situation still be changed if the court has already decided something?
Young people often fall into despair, hearing that 'the verdict is in' and from now until the end of childhood everything is set and lost. This is a huge mistake and a powerful myth. Issues of parental responsibility, child residence and contact are never definitively 'cemented'.
The guardianship court can change even a final order at any time if the minor's best interests require it. If what the court established in January turns out in September to be an absolute educational disaster, to be bad for the child's development, or if new facts have emerged (e.g. the parent's addiction has worsened, or the child has entered puberty and resolutely refuses to function in the existing pattern), a new application to change the decision can be made. The welfare of the child is a dynamic value and the court must respond to how the young person grows and how his or her needs change. Unfortunately, these decisions are not always quick.
FAQ - Quick answers to the most important questions
1. Can a child be placed in foster care simply because the parents are divorced?
No. Divorce alone does not automatically mean foster care. It is a last resort, used only when the parents are objectively unable or unwilling to take care of the child and the child's basic safety is threatened.
2. can siblings be separated after divorce?
It is a principle of Polish law that siblings should grow up together. Courts try not to separate brothers and sisters so as not to add to their trauma. The exceptions are situations in which the welfare of the children requires their separation (e.g. due to pathological conflicts between the siblings themselves or the determination of older, mature teenagers to live with different parents). Sometimes, therefore - particularly if requested - this is the case.
3. does the court have to hear the child?
In theory, based on the legislation - the court should do this if the child's development allows it. In practice, courts often bypass this obligation and resort to examinations with expert psychologists from the CSE to protect the minor from the immediate stress of being in court.
4 Can the child hire a lawyer himself? Or seek his/her advice?
A child does not have full legal capacity, so he cannot go to a law firm and have a lawyer handle a case in the way an adult does. However, if his or her welfare is affected, the court may appoint a professional representative (guardian ad litem) for him or her.
5. from what age can I decide who I will live with?
Polish law does not indicate a rigid limit (e.g. 13 or 15 years). What matters is real emotional maturity and intellectual development. The older the teenager, the more weight the court gives to his or her voice, but until the age of 18, the final decision always rests with the judge.
6 What to do when the court does not listen to the child?
Support should be sought from outside professionals: school psychologist, probation officer. Institutions such as the Children's Ombudsman can also be asked for support. The child has the right to signal his or her problems to a trusted teacher, who can file an official notice of inspection of the family's situation with the court.
7. Can I opt out of meetings with my dad or mum?
If you are afraid or suffer psychological or physical violence, yes, this is a reason why the court may change the order and, for example, prohibit contact. However, if you refuse out of mere reluctance or laziness, the court will not consider this as an argument. Formally, contacts are changed by the court, not by the minor himself at his own request.
End
The divorce of parents is a huge crisis in which the ones who suffer the most are those who caused it in the first place - the children. The most difficult part of the process is often the young person's sense that he has become a bargaining chip or a pawn in the brutal game of adults. In an ideal world, the law guarantees him absolute protection, respect for his voice and a safe haven. In the real world, it can be more difficult, and the judicial machinery can be sluggish and imperfect.
However, this does not change a fundamental fact: the child's voice matters and is not worthless. If parents lose control of their behaviour or are unable to provide a safe home, the state has an absolute duty to protect the minor from harm, using his or her relatives in the first instance. In child welfare cases, there is never a no-win situation and rulings that cannot be changed when the interests of the young person require it.
The most important things you should know (Checklist for you)
- It is not your fault. Arguing, divorce and court visits are adult problems that they cannot handle themselves. You are not the cause of their separation and you do not have to take any blame for it.
- Unless it is an absolutely exceptional situation, you are unlikely to end up with strangers overnight. Even in the worst situation, where your parents are unable or unwilling to care for you, the law will first seek a safe place for you with your immediate family, such as your grandparents.
- The judge is not infallible, but the case can be changed. Even if the court makes a judgment that is very bad for you, it is not the end of the world forever. The law allows you to change the court's decision if it harms your child.
- You have every right to be afraid and to ask for help. If you feel fearful of either parent, you have the right to speak out about it and no one has the right to force you to agree to violence or aggression during meetings.
- Call when you feel all alone. Number 116 111 is free and anonymous. On the other side of the phone are people who listen to stories like yours every day. You can always call them and just talk.
