Prague Post, April 28, 2010 by Gabriella Hold

A ruling by the Czech Constitutional Court promises to make it easier for fathers to gain custody of their children, with the court saying cases should be decided according to a child's best interests. While the decision could have a widespread impact, as one in two Czech marriages ends in divorce, critics say it pays little more than lip service to the rights of fathers.

"The position of a father seeking child custody is still very poor," said Aleš Hodina, owner of the Web site Střídavka.cz, which promotes the cause of joint custody.

"There is evidence that, in 90 percent of cases, children are given exclusively to mothers. The usual procedure is that a social worker or a judge will only look at the father's bad points and will overlook his good characteristics."

In its February ruling, the Constitutional Court effectively said fathers' rights would be given greater weighting as custody cases should be decided according to the child's best interests as opposed to the parents'. In addition, a mother's objections to joint custody will only be considered on the basis of the child's best interest.

The decree is a major reversal for Czech law, which has traditionally favored the mother gaining sole custody upon divorce. According to figures from the Justice Ministry, in 2008, a total of 18,840 cases resulted in custody being granted to the mother, and just 1,451 resulted in custody being granted to the father. A total of 635 cases resulted in courts granting joint custody.

Legal experts also say the decision will not change the landscape, as decision-making power still lies with the lesser courts.

"Unfortunately, despite the Constitutional Court decision, in the short term, we will not see radical changes in the decision-making practices in the courts of first instance and district courts that decide on child-custody issues," said Prague-based lawyer Tomáš Pelikán. "The practices are mostly determined by judges, mostly female judges, who have an agenda."
The Constitutional Court itself recognizes the fundamental problem lies in the district courts and has urged change.

"A belief in court practices still persists that it is more appropriate for a child of an early age to be brought up by its mother," said Constitutional Court President Pavel Rychetský. "But law and international conventions, however, say something else. They say both parents have equal parental rights. It is not possible to prefer one or the other on the grounds of sex."

However, observers note that, while the will for change exists, apathy and inefficiency in court procedures means the status quo will persist. Indeed, Hodina, who has been fighting for custody of his son for over a year, just lost his case last week and expects to continue fighting for some time.

"Rychetský has not come up with anything new, but it is good he opened up this issue," he said. "But the inertia of the judges, accustomed to the same processes for years, is huge. Therefore, it is necessary to constantly refer to the Constitutional Court, to the international conventions and also to our Family Code, which also refers to the child's right to both parents."

Pelikán agrees, noting the rigid and unprofessional practices of the courts of first instance means judgments on custody cases have remained intact since 1989.

"The problem first and foremost is the fact that the vast majority of judges are afraid of making decisions and instead try to make both parties come to an agreement," he said. "However, arguing parties do not want to agree and want a court decision instead. Even then, the courts of first instance are very reticent to rule against the will of one party, and subsequently most make a decision based on the custom that a child belongs to his mother."