Article 58 § 1 of the Family and Guardianship Code introduces the principle according to which in the divorce judgment the Court takes into account the spouses’ written agreement on the manner of exercising parental authority and maintaining contact with the child after the divorce, if it is in the best interests of the child. However, such an agreement is always assessed by the adjudicating court, which examines its compliance with the best interests of the child in the circumstances of a specific case.
If the adjudicating court agrees with the rules of exercising parental responsibility and contacts adopted in agreement, it must include the relevant provisions in the operative part of the judgment. This position was adopted by min. The Court of Appeal in Warsaw in the judgment of September 15, 2020 (file reference number: V ACa 776/18). This means that the decision regarding parental authority and contacts must always be included in the conclusion of the divorce decree. It is not enough to refer to the content of the parents’ agreement, treating it as a specific appendix to the judgment. The Court of Appeal noted that such a conclusion “results from a systemic and functional interpretation; concentrating all issues concerning the family in one ruling takes into account the effects of the spouses’ divorce and the shaping of family affairs to the extent that it will continue after the dissolution of the marriage. Systemic compliance is also indicated by Art. 4451 of the Code of Civil Procedure, which gives priority to decisions on parental responsibility and contacts with a child in divorce proceedings, and Art. 441 of the Code of Civil Procedure, requiring the taking of evidence to clarify the situation of the parties’ children „.
The above issue has a practical dimension – by considering the issues of parental authority and contacts in the operative part of the divorce judgment, the court creates an enforcement order. Otherwise, the court’s decision in this respect is not suitable for enforcement and the investigation of its enforcement will be significantly more difficult.