What is the exclusive guard of a child?
Exclusive guard in the event of a divorce: definition
According to the law, the exclusive guard of one or more children is to fix the child’s habitual residence with one of his parents. Thus, only one parent has legal responsibility and physical guard of the child (s). The other parent can obtain a right of visit and accommodation in order to maintain a relationship with their child.
We consider that a guard is exclusive when the child passes more than 60 % of his time with only one of his parents (149 to 219 days a year).
A decision in the interest of the child
This decision is made by A family judge in the best interests of the child. Exclusive guard is granted when a parent is considered unfit to ensure the child’s safety or well-being, especially in case:
- violent behavior;
- abuse;
- of drug addiction;
- negligence;
- other detrimental factors.
In other situations, the exclusive guard is granted following the decision of the two parents so that the child lives with one of them.
Exclusive guard vs alternate or shared guard
The exclusive guard favors the stability of a unique living environment, while the alternate guard emphasizes parental equality. The choice between the two depends on many factors: the age of the child, their needs, the ability of parents to get along, their availability, or their geographic and professional situation.
What are the bonds of the parent who do not have custody?
It is important to note that the exclusive guard does not mean that the other parent is completely excluded from the child’s life. In general, the other parent may have visit and communication rights With the child, although these rights can be limited or supervised.
The right of visit and accommodation
The parent who was not entitled to the exclusive childcare of the child can request visiting and accommodation rights. These rights may be agreed between parents or fixed by the judge. The goal is to allow the non -guardian parent to Spend quality time with the child. The terms of the right of visit (frequency and duration) are decided according to the needs of the child and the availability of parents.
It can be regular visits On weekends, half of the school holidays, or at other times. The duration may vary depending on the circumstances. If concerns exist regarding the safety of the child or if one of the parents does not respect the general rules, it can be supervised.
The right to information
The parent who does not have the exclusive custody of the child has the right tobe informed about the child’s lifeespecially on his schooling, his health and his activities. Both parents must cooperate to share relevant information. Again, it is a question of continuing to exercise its parental authority and of remaining involved in the life of the child.
Who pays what in the event of an exclusive guard?
In the event of an exclusive guard of a child in France, the distribution of financial responsibilities between parents is variable. The distribution of expenses can be specified in a JAF decision or in an agreement between parents. It varies according to the circumstances of each family.
Alimony
The parent who does not have the exclusive custody of the child hasthe obligation to contribute financially his maintenance and education. This is done through alimony, determined by the judge according to the child’s income and needs. In France, scales help establish an amount of fair alimony.
Current expenses
THE parent is in charge of the current expenses of the child, such as food, clothes, leisure, etc. These expenses are generally partly covered by alimony and the parent’s own income.
The child’s residence
It is the parent which is required to provide accommodation to the child. The other parent may however have to contribute financially to the child’s housing costs, especially if the latter is considered an important expense for his well-being.
Health care
Children’s health care costs, such as medical visits, medicines, health insurance, etc., are generally shared between the two parents depending on their financial resources.
Exceptional expenses
In addition to alimony, some exceptional costs Can be shared between the two parents, even in the event of an exclusive guard. These expenses are not included in current charges covered by alimony, and concern occasional or unusual needs. They may include:
- Non -reimbursed medical costs (orthodontics, specialized consultations, glasses, etc.);
- specific tuition fees (registration fees in the private sector or extracurricular activities);
- school trips;
- Private lessons, tutoring, or artistic or sports training.
What are the conditions for obtaining exclusive custody?
To decide to set up an exclusive custody, the family judge takes into account several essential criteria:
- The age of the child.
- The relationship between the child and his two parents.
- There availability and the lifestyle of each parents and their ability to meet the needs and expectations of their child.
- The stability of the child, material and emotional.
- The opinion of the child and the will of each of his two parents to maintain or not a relationship with him.
What evidence does it take to obtain exclusive custody?
Exclusive guard can only be granted to the parent if his ex-husband does not wish to obtain it, or If a serious reason is justified. It is up to the parent who intends to obtain custody of his child to prove to the judge that it is the interest of the child to rule in this sense.
- This parent can notably provide court with any proof of the incapacity of his ex-spouse to assume the terms of childcare of their child and to meet their needs.
- This is particularly the case when there are cases of mistreatment, alcohol abuse, or even serious illness.
Conversely, the judge never takes into account the financial resources of each parents, their current matrimonial situation, or their sexual orientation.
How to get the exclusive custody of your child?
In practice, within the framework of a divorce or a separation, a parent can obtain exclusive custody of his child either by mutual agreement with his ex-spouse, or by the referral to the family affairs judge.
In case of amicable agreement between the two parents
In the event of an amicable agreement between the two parents, the latter must write in writing Their decisions concerning the methods of childcare, parental responsibility and the right of visit. This agreement must be approved by the family judge, who ensures that the child’s interest is respected and that he will evolve in good conditions.
The intervention of the family mediator in the event of amicable non-entertainment
If the separation is conflict, parents must call on a family mediator, who will help them agree. If he is not allowed to make decisions instead of parents, the mediator has the role of supporting them in their journey and opting for the best solution in the interest of parents and the child by avoiding conflicts.
If an agreement is reached, it must be written in writing And determine the plan for sharing and responsibility for parental authority, then being approved by the family judge.
Seize the Judge of Family Affairs (JAF)
If the amicable agreement remains impossible, it is necessary to seize the judge of the family affairs. In his decision, the magistrate must rule on And take into account the parent’s desire to obtain exclusive custody. He must make his decision according to the interests of the child.
- It is first necessary to file a request at the registry of the tribunal de grande instance.
- Justice costs are associated with the referral to the JAF. The prices vary depending on the situation and the jurisdiction.
- The JAF examines the file and summons the parties for an audience.
- During the hearing, the parties present their arguments and evidence before the JAF.
- The JAF makes its decision after the hearing. The latter is recorded in a judgment which establishes the type and the methods of childcare (shared or exclusive guard).
Be accompanied by a lawyer
It is recommended to obtain assistance from a Family lawyer,, Especially when the demand for exclusive guard is part of a context of conflictual separation or when there are sensitive elements to assert (violence, neglect, instability, etc.).
Who most often gets custody of children in case of separation?
According to data from the Ministry of Justice, 71 % of cases of separation lead to a residence of the child fixed in the mother, while 12 % of cases attribute the usual residence to the father. About 17 % of cases set up an alternate guard, generally on the joint initiative of both parents.
A bill tabled in January 2025 aims to establish a Legal presumption of alternate residence. If adopted, alternating residence will become the default principle in the event of disagreement between parents, unless it goes against the child’s interest.
What is the difference between an exclusive guard and an exclusive parental authority?
Principle of exclusive parental authority
When the judge entrusts parental authority to one of the parents, we speak of exclusive parental authority. The parent who exercises exclusive parental authority must take care of the education and maintenance of your child alone. He remains required to inform the other parent of all important decisions impacting the life of the child.
Reasons for withdrawal from parental authority
Exclusive parental authority is fixed by the judge when:
- One of the parents seriously lacking in its obligations ;
- One of the parents wants parental authority to him;
- In the event of mistreatment, violence, manifest disinterest in the child and lack of care, alcoholism and drug addiction, or even imprisonment for crime or offense.
In judicial practice, you should know that possible or supposed risk of abuse is not enough for the judge for him to rule on a withdrawal from parental authority.
How to contact the family judge?
Identify the right court
JAF cannot be contacted directly by phone or personal mail. Any approach goes through the Judicial court on which your place of residence depends or that of your child. You can find the competent court here: www.justice.fr.
File a request at the court registry
You must fill and deposit a JAF requestor a form that sets out your request (exclusive guard, right of visit, etc.). The CERFA form n ° 11530*11 allows you to enter the JAF outside a divorce procedure (simple cases). In the event of a more complex litigation or demand divorce, the assistance of a lawyer is compulsory.
Pay any fees
Access to JAF is free For requests concerning children (custody, right of visit, alimony), but bailiff or lawyer’s fees may however be added, depending on the situation. Jurisdictional aid can be requested in the event of low incomes.
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