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father’s day. Kosiniak-Kamysz: “father’s position before the courts worse than mother’s position”

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“Fathers and associations come to me and say: ‘Alternative custody is very rarely granted, we start from a de facto lost position in most cases,'” Władysław Kosiniak-Kamysz said in a radio interview. On Father’s Day, we show that according to court statistics, the situation of fathers has improved, but in this case the numbers do not show the full reality.

The president of the Polish People’s Party, Władysław Kosiniak-Kamysz, spoke about his father’s position in the family, commenting on May 10 in Radio Zet the case of the deceased eight-year-old Kamil from Częstochowa, who was abused by his stepfather. At some point, the conversation turned to how the tragedy happened and who failed. The president of the PSL, by no means defending the perpetrator, but referring to the problem of parental care in general, noted: “The father’s position before family courts is worse than the mother’s. This results from the years of jurisprudence in this case.”

“[Pozycja] father is weak, bad. Fathers and associations come to me and say: ‘Alternative custody is very rarely granted, we start from a de facto lost position in most cases’, continued Kosiniak-Kamysz. He spoke about the need for changes in adjudication in this area, as well as the need for education judges in courts and family departments.

The fathers and the associations representing them have been reporting the problem of unequal treatment before the courts for years. But statistics show that in recent years the position of fathers has improved – in the case of divorce, custody is increasingly awarded not only to the mother, but to both parents. Lawyers dealing with family law argue, however, that there is a long way from statistics to practice.

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Parental responsibility is increasingly vested in both parents after divorce

From the Statistical Guide of the Judiciary (where available divorce data) shows that in recent years, in the case of a divorce, the courts most often awarded custody of the child to the mother and father. However, this is part of reality – many children are brought up not in marriages, but in informal relationships. Statistics are silent about their situation after their parents decide to separate.

IN 2003 (oldest available data) per 30.2 thous. divorces in 19.1 thous. cases, parental authority was entrusted to the mother; in 1.1 thousand – father; in 9.5 thousand – together mother and father. So the child stayed with the mother in 63.1 percent cases, with the father – w 3.6 percent, with mother and father – w 31.4 percent cases. In the following years, the number of cases of entrusting parental authority to the mother decreased, and the number of cases of entrusting care to both parents increased.

still in 2012 on 37.6 thous. divorces in the case of 22.7 thous. (60.4 percent) cases, parental authority was entrusted to the mother, and to both parents – in the case of 12.5 thousand. make it happen (31.4 percent). Fathers received parental authority only in 3.6 percent cases.

IN 2016 statistics were similar: out of 37.3 thousand of divorces, 17.4 thous. mothers (46.7 percent), and in 17.8 thous. cases – both parents (47.6 percent); only in 4 percent cases, parental responsibility was vested in the father.

In the following years, the statistics look more and more favorable for men. Latest data for 2021 show that out of 35.3 thous. divorces in 9.6 thous. of cases the exercise of parental authority was entrusted to mothers, in 1 thous. cases – fathers, and in 24 thousand. cases for both parents. The percentage share is as follows – in 27.2 percent cases children stayed with their mother; In 2.8 percent. – with father; In 68.2 percent – with mother and father.

“Alternative custody is awarded more often” vs “men do not have a good standing in court”

“Statistics do not justify that the situation of fathers in divorce cases in terms of childcare is less favorable than that of women” – argues Ewa Ważny, president of the Association of Family Judges in Poland in response to questions from Konkret24. He emphasizes that in practice the content of the judgment is often in line with the expectations of both parties. “In order to properly examine the issue, each case should be analyzed in this respect, whether the demands of the parties were disputable” – he points out. Ewa Ważny argues that judges adjudicating in divorce cases talk about recent changes. “Alternate custody is ordered more often, and the place of residence of the child or children with the father is determined, with the consent of the mothers” – he emphasizes.

Maciej Rodacki, a lawyer specializing in family matters, also talks about this trend, which is favorable for fathers, which has been visible in recent years. In an interview with Konkret24, Attorney Rodacki points out that especially young men increasingly want to participate in childcare. At the same time, Rodacki points out that in matters concerning childcare, men are in a worse position than women. – I do not like to generalize and always try to look at the individual. Nevertheless, if I were to make a general assessment, I believe that men do not have a good situation in court – states Attorney Rodacki.

Dr. Katarzyna Kamińska from the Institute of Legal Sciences of the University of Silesia in Katowice notices the change in the jurisprudence of the courts. “Until recently, divorce was the situation that most often contributed to the separation of one of the parents, usually the father of the child. child,” he writes in an opinion for Konkret24. “However, this situation is changing. There is a tendency to implement the postulate of equal treatment and the dignity of a man as a father, taking into account its importance for the life, upbringing and well-being of the child” – concludes the lawyer.

Attorney Katarzyna Bórawska is of a different opinion: “Currently, the position of mothers in divorce in terms of childcare is still favored” – commented in the analysis sent to Konkret24. “It seems to me that this is the aftermath of an archaic family model, in which the mother was seen as the leading parent in caring for the children” – points out Attorney Bórawska. Like Maciej Rodacki, however, he notices a positive trend for fathers that has been visible in recent years. “Men are more and more willing to engage in raising children and want to spend time with children in similar periods as women – for example, week to week” – writes Bórawska.

Alternating care. “Father still has to pay mother alimony”?

Attorney Katarzyna Bórawska reminds about the possibility of establishing alternate custody of children. It consists in the fact that parents bring up children in similar periods alternately. For example, the first and third weeks of the month, the children live with dad, and the second and fourth – with mom.

But in the case of joint custody, the question of money is often asked. “In this configuration, should the father still pay the mother child support, since he takes care of them equally?” Borawska asks. Her observations show that some courts believe that if there is a clear disproportion in earnings between the parents and the father of the children earns much more, he should still support the children financially and pay maintenance to the children’s mother. Other judges, however, consider it fair to abolish the maintenance obligation if children live with both parents for equal periods.

Attorney Maciej Rodacki, in turn, points out that alternate care is a more factual than legal concept in Poland. “It is not regulated in the Polish Family and Guardianship Code. It is rarely used in court judgments” – he points out. Attorney Rodacki argues that alternating care usually takes place when the parties reach an agreement. – Rarely does the court itself decide on a solution imposing alternate custody on the parties – he states.

According to Attorney Rodacki, fathers of young children who apply for contact with them sometimes have to reckon with decisions that are difficult to accept (e.g. assuming contact only in the presence of the mother). He also talks about problems with the enforcement of court decisions. – It often looks terrible. The execution lasts for months, and it comes down to very low financial penalties for mothers who hinder contacts – says the lawyer.

The observations of lawyers cited here show that in the case of such a delicate matter as parental care, it is difficult to assess the situation only on the basis of statistics.

Author:Krzysztof Jablonowski

Main photo source: PAP/Pawel Supernak

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