Social Pathology and Prevention 2024, 10(1):45-63 | DOI: 10.25142/spp.2024.003

ALTERNATING RESIDENCE AND SWINGING PENDULUM OF CONSTITUTIONAL COURT

Martin Kornel¹

¹ Katedra občanského práva, Právnická fakulta, Masarykova univerzita

Statistics show that there has been a significant increase in the number of cases where a minor child is entrusted by the court order to the alternate care of his or her parents in the Czech Republic within the last 10 years. This is a consequence ofthe decision-making practice of the Constitutional Court, which emphasises the priority of alternate care and its importance for respecting the rights of both parents and the child. At the same time, data from foreign research show that, in general, the positives outweigh the negatives of such arrangements, or at least do not support the conclusion that alternating care has a worse impact on children than other forms of care. Nevertheless, the Czech literature articulates factors that potentially increase the burden of alternating care for children: parental conflict, the distance of the parents’ homes and the age of the minors. The Constitutional Court has also commented on these factors in its case law. The present text analyses all the judgments of the Constitutional Court dealing with the issue of alternate care from 2004 to 2023. It also analyses a selected sample of the resolutions by which the Constitutional Court rejected the complaints of individual complainants in the same period concerning the alleged violation of their rights in connection with the modification or non-modification of alternate care for children. Based on this analysis, I will present how the Constitutional Court’s view on the issue of alternate care has evolved and its conclusions. In summary, the above factors are not intended to lead to a blanket rejection of alternate care but may, in an individual case, be a reason for setting up a different form of care. Provided that it is shown in the proceedings that there are clear grounds for a different care setting and the general courts subsequently give careful reasons for their decision.

Keywords: alternate care, individual care, Czech Constitutional Court

Received: February 19, 2024; Revised: June 2, 2024; Accepted: September 30, 2024; Published: May 22, 2025  Show citation