- Business in Poland -
Alternating custody – when can a court order it and what requirements must be met?
Alternating custody is a way of exercising parental authority and care over a child in which the child lives with each parent in recurring periods, for example one week with one parent and one week with the other. In Polish law, this concept functions mainly in court practice and in provisions concerning certain benefits. The Polish Family and Guardianship Code primarily refers to the best interests of the child, parental authority, contact with the child and parental agreements [1].
An alternating custody arrangement is not an automatic consequence of divorce, separation or the parents' breakup. The court examines whether the proposed organisation of the child's life is realistic, stable and consistent with the child's best interests. What matters is not only the parents' declarations, but also the previous care arrangement, the child's age, family relationships, the distance between the parents' homes and the parents' ability to make joint decisions.
When can a court order alternating custody?
A court may approve an alternating custody model primarily when both parents have full parental authority, want to participate actively in raising the child and are able to cooperate on day-to-day matters. The basis for the ruling is the best interests of the child, not the convenience of the parents. In divorce cases, Article 58 of the Polish Family and Guardianship Code is relevant; in separation cases, Article 58 in conjunction with Article 613 § 1 of that Code applies; and in cases involving parents living separately outside divorce or separation proceedings, Article 107 of the Code applies [1].
In practice, the court considers whether the child has continuity of education, healthcare, extracurricular activities and social contacts. It is also important whether the parents live close enough to each other so that the child's daily routine does not require excessive commuting. The court may take the child's reasonable wishes into account if the child's mental development, health condition and level of maturity allow it, applying the provisions on hearing a minor, in particular Article 2161 and Article 576 § 2 of the Polish Code of Civil Procedure [2].
Alternating custody requirements - what does the court check in practice?
The key requirements for alternating custody can be grouped into several areas. They are not a closed list, as every case depends on its specific facts.
- The best interests of the child - the fundamental criterion under the Polish Family and Guardianship Code and the Convention on the Rights of the Child [1], [3].
- Organisational stability - a predictable schedule, similar standards of care and access to school, doctors and daily activities.
- Parental communication - the ability to agree on educational, health-related and upbringing matters without involving the child in conflict.
- Housing conditions - the child should have real space to study, rest and keep belongings at each parent's home.
- The previous division of care - the court assesses who actually cared for the child, not only the parties' formal declarations.
In family cases, support from lawyers specialising in family law can be helpful, especially when the dispute also concerns the child's place of residence, contact arrangements, child support and the exercise of parental authority.
A parenting plan as key evidence of how custody will be organised
A parenting plan, also referred to as a parental agreement, is highly relevant when assessing whether alternating custody is workable. In a divorce case, the court takes into account the spouses' written agreement on how parental authority will be exercised and how contact with the child will be maintained after the divorce, provided that the agreement is consistent with the child's best interests [1].
A good parenting plan should be specific. A general statement that the child will spend "equal time" with each parent is not enough. The document should regulate, among other things:
- the custody schedule during school weeks, weekends, public holidays, winter breaks and summer holidays,
- how the child and the child's belongings will be handed over,
- rules for telephone or online contact with the other parent,
- decision-making on medical treatment, education and extracurricular activities,
- the division of the child's maintenance costs,
- a dispute resolution procedure, for example mediation.
The more precise the plan, the easier it is to demonstrate that the parents understand the practical consequences of an alternating custody arrangement. However, the court is not bound by the agreement if it finds that it infringes the child's best interests.
When should a court not order alternating custody?
Alternating custody should not be used as a way to "equalise the rights" of parents or as a pressure tool in a divorce dispute. In practice, three exceptions are particularly important: domestic violence or another threat to the child's safety, the parents' lack of even minimal ability to cooperate, and the organisational impracticability of the arrangement.
The first exception covers situations involving violence, addiction, serious neglect or other circumstances that endanger the child. In such cases, the court should distinguish procedural allegations from facts confirmed by evidence, such as medical records, Police interventions, the Polish "Blue Card" procedure, expert opinions or witness testimony.
The second exception concerns a persistent, high level of conflict between the parents. Hostility between adults does not always rule out alternating custody. The problem arises when parents are unable to share information about the child, agree on decisions and respect the schedule.
The third exception is organisational. Alternating custody may be impracticable if the parents live far apart, the child would have to change schools, or daily commuting would significantly disrupt the child's routine.
Alternating custody and child support
Alternating custody and child support are a common source of disputes. A shared physical care arrangement does not automatically mean that no child support is payable. The parents' child support obligation arises under Article 133 of the Polish Family and Guardianship Code, and its scope depends on the child's justified needs and the parents' earning and financial capacity, in accordance with Article 135 of that Code [1].
If the parents have similar incomes and incur comparable costs of maintaining the child, the court may adopt a solution in which each parent directly covers the child's expenses. However, if there is a significant income disparity or one parent bears higher fixed costs, child support may still be awarded despite alternating custody.
In practice, it is advisable to separate day-to-day costs, such as food or hygiene products, from shared costs, such as school, medical treatment, extracurricular activities, insurance or larger purchases. This division reduces the risk of further disputes.
Evidence in an alternating custody case
In an alternating custody case, relevant evidence may include school documents, medical certificates, correspondence between the parents, the previous care schedule, proof of the child's maintenance costs and witness testimony. The court may also admit evidence from an opinion issued by a court-appointed family specialist assessment team (OZSS) if an assessment of family relationships and parenting competencies is needed [4].
People who run businesses, hold management positions or work irregular hours should be particularly careful to demonstrate their real availability for the child. Professional flexibility alone does not determine the outcome. What matters is a practical daily schedule and the ability to respond to the child's needs.
Support for an individual client in such cases usually includes an analysis of litigation risks, preparation of the party's position, assessment of evidence and development of a proposed parenting agreement.
How to prepare for the case
Preparation should begin with organising the facts. It is crucial to show what care looked like before the dispute, who picked the child up from school, who participated in medical treatment, who organised the child's free time and how the parents communicated about the child's matters. The court assesses real conduct, not declarations made for the purposes of the proceedings.
This material is for informational purposes only and does not constitute legal advice. Assessing the chances of obtaining alternating custody requires an analysis of documents, family relationships and the child's current situation.
If you need to organise your litigation strategy or prepare a parenting plan, Kopeć & Zaborowski can review the case after contact via the KKZ website.
FAQ - alternating custody
Does alternating custody always mean a 50 percent division of time?
Not always. Most often, the model involves comparable periods of care, but the schedule may be adjusted to the child's age, school, the parents' work and the distance between the homes.
Can a court order alternating custody without one parent's consent?
Yes, it can, but in practice the lack of consent from one parent makes such a ruling more difficult. The court then examines whether, despite the dispute, the parents are able to cooperate on the child's basic matters.
Is a parenting plan mandatory?
It is not formally mandatory in every case, but it is very useful. It shows the court that the custody arrangement has been carefully considered and can work in everyday life.
Do you have to pay child support under alternating custody?
It depends on the child's needs, the parents' incomes and the division of costs. Alternating custody does not automatically eliminate the child support obligation.
From what age can a court consider alternating custody?
The law does not set a single age limit. The court assesses the child's maturity, bonds with the parents, emotional needs and the practical feasibility of the schedule.
Does a serious parental conflict rule out alternating custody?
Not every conflict rules it out. The main obstacle is a level of dispute that prevents safe communication, decision-making and implementation of the schedule without harming the child.
Author: adw. Maciej Zaborowski, Managing Partner
E-mail: m.zaborowski@kkz.com.pl
Bibliography
- [1] Act of 25 February 1964 - Polish Family and Guardianship Code, in particular Article 58, Article 613 § 1, Article 107, Article 133 and Article 135.
- [2] Act of 17 November 1964 - Polish Code of Civil Procedure, in particular Article 2161 and Article 576 § 2.
- [3] Convention on the Rights of the Child adopted by the UN General Assembly on 20 November 1989, Journal of Laws 1991 No. 120 item 526.
- [4] Act of 5 August 2015 on court-appointed family specialist assessment teams.
