According to Art. 5 of the Act of February 11, 2016 on state aid in bringing up children, the childcare benefit, commonly referred to as 500+, is granted in certain cases to the parents and guardians of a child under 18 years of age.
Article 5 of this Act stipulates that if a child, according to a court decision, is under the alternate care of both divorced, separated or separated parents in comparable and repeated periods, the amount of the childcare benefit is determined for each of the parents in half the amount of the childcare benefit for a given month.
In the judgment of February 26, 2019, I OSK 878/17, the Supreme Administrative Court considered the situation when the court ruling on the relationship between divorced parents and children was made before the institution of alternating care appeared in the regulations (i.e. before April 1, 2016). The court pointed out that past judgments and settlements cannot be assessed against the background of the current regulations and cannot require the use of the discussed legal phrase. Such a condition is feasible and may be required only with regard to judgments or settlements concluded after the effective date of the act. In relation to previous judgments, this issue must be assessed taking into account the characteristics and objectives of this institution.
In assessing the purpose of alternating care, the court stated that this institution is characterized by its parents exercising it towards a child who lives and focuses its life matters on a change in both parents. The concept of alternating care is not symmetrical, so it is not required that the care of children is identical for the mother and father.
If the parent actually cares for the children to an equal or almost equal degree with the other parent, in the court’s opinion, he should be treated as an alternate care provider and therefore entitled to PLN 250 for a given month of childcare benefit.