More and more families are cross-border families – one parent lives in Poland, the other has moved abroad, and the child functions between two countries, cultures and legal systems. When the parents separate, a number of questions arise: where will the child live, how to organise contact with the parent abroad, and which court has jurisdiction to decide these matters. Below, I explain what to pay attention to in such a situation.

Which court has jurisdiction in matters concerning the child?

In relations between European Union Member States (and based on the Hague Convention), the general rule is that matters concerning parental responsibility and custody of the child are dealt with by the court of the country where the child has his or her habitual residence. Importantly, this does not have to be the same court that is handling the parents’ divorce proceedings – in some situations, the two proceedings may take place in different countries.

The child’s habitual residence is not the same as the place of registration or citizenship – it refers to the actual centre of the child’s life: where the child attends school or kindergarten, where the child has his or her social environment, and where the child lives on a daily basis. Determining this may be straightforward when the family has lived in one country for years, but it may be more complex if the family has recently moved or the child divides his or her time between two countries.

How is the child’s place of residence determined after the parents separate?

When deciding on the child’s place of residence, the court is primarily guided by the child’s best interests, taking into account, among other things:

• the child’s existing environment – school, friends, family and routines,
• the child’s age and relationship with each parent,
• the care-giving abilities and living conditions provided by each parent,
• in the case of older children – also their own opinion on the matter.

In cross-border cases, an additional element comes into play: assessing the extent to which moving to another country (or remaining in the current one) will affect the child’s stability and well-being.

How to organise contact when the parents live in different countries?

Arranging contact between a parent living abroad and the child usually requires a different approach than in purely domestic cases. In practice, courts and parents often opt for solutions such as:

• longer, accumulated periods of contact – e.g. during holidays, school breaks or public holidays, instead of weekly meetings,
• regular remote contact – telephone calls or video calls between in-person meetings,
• clear rules concerning travel – who covers the travel costs, how the child is collected and handed over, and what happens if plans change.

A well-drafted parenting agreement or court decision should address these matters as precisely as possible – in cross-border cases, vague provisions are more likely to lead to disputes.

What are the consequences of taking a child abroad without the other parent’s consent?

This is one of the most serious issues in cross-border cases. Taking a child abroad without the other parent’s consent (or without the court’s consent, if parental responsibility is restricted) may be classified as parental child abduction within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction.

In such a situation, the parent whose rights have been infringed may apply for the child to be returned to the country of the child’s habitual residence. Such proceedings are urgent in nature and require a prompt response – each month of delay makes it more difficult to subsequently seek the child’s return, because courts also take into account the extent to which the child has already become settled in the new environment.

If you are planning to move abroad with your child, it is crucial to establish in advance whether you need the other parent’s consent or the court’s consent – travelling without such consent, even if the intentions are good, may be classified as wrongful removal.

Recognition and enforcement of judgments in another country

A custody judgment issued in one EU Member State is, as a rule, recognised and enforceable in other Member States without the need for additional proceedings. In practice, this means that a Polish judgment concerning contact or parental responsibility should also be respected abroad – although in the event of a dispute, it may be necessary to apply for a declaration of enforceability or take additional enforcement steps in the country concerned.

In relations with countries outside the EU, the situation may be more complex and depends on whether the country concerned is a party to the relevant international conventions.

What to do when planning a child custody case involving two countries?

1. Determine where the child’s habitual residence is actually located – this often determines which court has jurisdiction.
2. Do not independently decide to travel abroad with the child without first establishing the legal situation – even a short-term trip may raise doubts if it is unclear on what terms it is taking place.
3. Ensure precise provisions concerning contact – in cross-border cases, general wording leads to misunderstandings more often than in domestic cases.

Child custody cases involving two countries require particular attention – both when determining the competent court and when formulating contact arrangements or planning a potential relocation. The child’s best interests remain the overriding criterion, but safeguarding them in a cross-border context requires knowledge not only of Polish family law, but also of EU and international regulations concerning jurisdiction and the recognition of judgments.