Before the amendment to the Civil Code that took effect on 1 January 2026, the parties’ arguments in disputes over the care of minors often relied on Constitutional Court judgment file no. I. ÚS 1554/14 of 30 December 2014, in which the Court designated shared care as default model towards which court decisions should aim, unless that would be contrary to the child’s best interests. In its July ruling, however, the Constitutional Court made it clear that this need not mean symmetrical shared care. The starting point for the court’s considerations is therefore not a 50:50 division of parental care, but always the specific circumstances of the individual case.
In judgment file no. IV. ÚS 765/26 of 28 July 2026, the Constitutional Court considered a complaint by the mother of three minor children challenging a judgment of the Regional Court in Prague that placed the children in the so-called exclusive care of the father, with weekend contact for the mother three times a month. At the same time, the Regional Court ordered the mother to collect and return the children at the father’s place of residence, 300 km away.
The District Court in Nymburk had previously placed the children in asymmetrical shared care of both parents, with the children being in the mother’s care from Wednesday at 3:00 p.m. until Sunday at 4:00 p.m. once every two weeks, and otherwise remaining in the father’s care (which roughly corresponds to a 29% to 71% split in the father’s favour). Handovers of the children were to take place “halfway” at a petrol station.
The Regional Court in Prague, as the appellate court, justified the partial change of the judgment primarily on the grounds that the previous shared care arrangement had been set at a time when all the children were of preschool age. After the eldest daughter started school, the Regional Court held that it no longer served their best interests, because it complicated the fulfilment of school obligations and her education. It further argued that the mother had changed the children’s place of residence without the father’s consent and thereby created a situation in which the parents live approximately 300 km apart. She should therefore not benefit from her unlawful conduct at the father’s expense, as he played no part in creating that situation, and shared care appeared difficult to implement under these circumstances.
The Constitutional Court first addressed the amendment to the Civil Code. The legislature abandoned the distinction between three forms of care — namely joint care of both parents, shared care, and exclusive care of one parent with contact arrangements for the other — as section 907 of the Civil Code now provides that if the court does not place the child in the joint care of both parents, it shall determine the scope of each parent’s care of the child, taking the child’s interests into account.
At the same time, in paragraph 31 of the judgment the Constitutional Court quotes its conclusions from last year’s judgment file no. I. ÚS 2364/24 of 5 February 2025, in which it emphasised that: “[…] although in its case law it has long designated shared care as the default model, it cannot be inferred from any judgment that this default model should be its symmetrical variant (i.e. a 50:50 split). On the contrary, the Constitutional Court has expressly accepted that shared care may be divided asymmetrically […].”
“From the perspective of the social sciences, shared care is a situation in which the child spends at least 30% of the time in the other parent’s household.”
The Constitutional Court concluded that the Regional Court had not sufficiently explained why its decision was in the children’s best interests. It therefore quashed that decision and emphasised that, when deciding on care, a parent cannot be “punished” for their previous conduct (the mother’s move 300 km away). It might appear that the Constitutional Court’s post-amendment conclusions, read together with earlier case law, suggest that the preferred division of care corresponds to a range of 30–50% for each parent. The Court goes on to explain, however, that the preference for a model of shared care — albeit not necessarily a symmetrical one — over exclusive care with contact arrangements was intended to prevent either parent from feeling they had “won”, a feeling that could then spill over into arguments with the other parent in the actual exercise of parental responsibility.
It can therefore be concluded that the scope of care is fully determined by the circumstances, without there being any recommended quota from which the court must start. The child’s best interests thus remain the central element when deciding on the scope of care of a minor.
The law firm KOUBÍKOVÁ LEGAL is a partner of legalweb, and this text was published as part of this collaboration.
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