FAMILY LAW
1. Child support/maintenance/alimony in Polish law.
2. Parental authority.
3. Parental contact with the children (visitation rights in Polish law)
4. Establishing and denying paternity under Polish law.
5. Marriage under Polish law - basic facts.
7. Separation.
8. What happens when the parents fail at their responsibilities towards their child?
1. Child support/maintenance/alimony in Polish law
According to the Polish Family and Guardianship Code, while determining the amount of child support the court takes into account the child's justified needs as well as earning and financial capacity of the person obligated to pay. To put it simply, when the judge decides about the monthly amount to be paid, all that matters is: proven needs of a child and how much a parent earns (or how much they could earn if they had a job relevant to their qualifications and skills).
If an obligated parent is unemployed, it won't be assumed that they earn nothing and therefore don't have to pay at all. Most likely, the judge will check adequate job offers and assume that the parent could earn the amount proposed as a salary in such offers. If the parent obligated to pay child support has recently quit a well-paid job and/or given up their property rights (e.g. sold their house, car or land), therefore worsening their overall financial situation, the judge will not take into account such a change. This is meant to prevent parents from quitting their jobs or transferring their properties to another person in order to make them seem poorer than they really are.
It is worth noting that a child has the right to the same standard of living as their parents. This means that there is no fixed amount of child support deemed adequate for e.g. a five-year-old, as some children live in wealthy households and some don't. Depending on the standard of living of the child's parents, the child support could amount to both PLN 500 and PLN 2000 or more for the same-aged children.
A common misconception is that the amount needed to cover all the child's expenses should be split between the parents because they should bear the costs of their child's maintenance equally. In most cases the parent who does not live with the child will have to pay for more than half of the child's upkeep, as the other parent fulfills their financial obligations towards the child not only by paying for things, but also by providing daily care ('contribution in kind', using the term loosely).
Child support claims are subject to a 3-year period of prescription (limitation), meaning that the parent sued by a child (represented by the other parent), will not have to pay outstanding child support going back more than 3 years before the date of the filing of the petition with the court. As a rule, the court adjudicates child support from the date of the filing of the petition. If, however, the parent representing a child proves that there have been unmet needs of a child and they go back 3 years from the date of filing the petition (but not earlier than that), the court may order retroactive child support.
A petition for child support should be filed with the district court (=sąd rejonowy) according to the child's place of residence. This means that if you live in the north of Poland and your child lives in the south, the court proceedings will take place in the court closest to where your child lives, i.e. in the south of Poland. It has to be drawn up and filed in two identical copies and the child's birth certificate has to be enclosed. In the petition it is important to provide the current address of the parent obligated to pay child support (it matters where they actually reside and not where they are officially registered as residing) and the child's personal identification number (PESEL). The petion can be written and filed by a child's parent, there is no obligation to hire a lawyer to do that.
As for the technicalities - the petitioner is the child represented by one of their parent, therefore during the court proceedings it will be the child versus the other parent. It is also a good idea to enclose documents such as invoices which confirm the child's expenses.
If there are witnesses who could testify about the relevant issues (such as the needs of a child, financial situation of both parents) it's also advisable to give their names and addresses in the petition and ask the court to summon them as witnesses.
If you are the parent who have received a pleading called 'petition for alimony/maintenance/child support', you'll be requested to submit your written reponse within 14 days. You will be expected to state whether you agree to pay the amount indicated by the petitioner and if not, what are your reasons. If you have other financial obligations you should enclose copies of documents confirming them (also documents stating how much your earn) and give names and addresses of your wittnesses, if any.
2. Parental responsibility/authority
According to Polish law, when a child is born to a married couple the parents share parental authority (parental rights and obligations). The same situation happens when a child is born to an unmarried couple and the father has officially recognised the child (= both parents have the same parental authority/responsibility).
However, problems often arise when the child's parents split, one of them moves out of the shared home and the other still lives with the child. In such situations it is possible for the parents to continue sharing their parental authority (as long as they are on good terms) but often it is not a viable option. The most common scenario is the mother filing a petition with the court for the limitation of the father's parental authority. If the court decides that it is the best solution for the child, the mother will retain full parental authority while the father will have his limited. If that happens, the father will still have a say in his child's most important matters such as education, medical treatment, going abroad etc. but the mother will be the 'leading' parent who single-handedly makes minor, everyday decisions concerning the child. Even though the father's parental authority has been limited, the child's mother is not allowed to make crucial decisions about the child without the father's consent. If, however, they disagree about e.g. changing school or undergoing a surgery, each of the parents may petition the court to decide what's best for the child - the court's decision will be binding for both parents. The same applies to a parent who retained full parental authority but needs the consent of the other parent (e.g. the mother wants to move to another city but the father disagrees). In such cases the leading parent may also petition the court to resolve this issue. In the past it used to be pretty automatic that the father living apart had his parental authority limited, in the recent years, however, the provisions have changed and judges decide that both parents should have the same scope of parental authority unless there are some extraordinary circumstances.
One last note - if the child's parents were never married and they both share parental authority (and want to continue doing so), it's a good idea to file a petition for establishing the child's place of residence (without it, both parents have the right to claim that their home is the child's place of residence). According to Polish law a person may only have one permanent place of residence.
3. Parental contact with the children (visitation rights in Polish law)
Let's imagine a typical post-split situation: a couple (married or umarried) has kids, the father moves out but he doesn't want to lose touch with his children. He would like to be able to see the kids as often as possible but the mother is reluctant. What can he do about it?
Any (honest) lawyer would say: it's best if teh children's parents work it out themselves. If they succeed in doing so, they won't need any court decision and just play it by ear focusing on what's best for the kids. However, most break-ups are not amicable and oftentimes one way to deal with the resenment towards the other person is by limiting their contact with the children. If that is the case, the parent who doesn't live with the children should act swiftly to avoid losing touch with the kids and having to rebuild the relationship.
Let's consider two types of situations here: 1. the parents are still (unhappily) married and one parent already limits the other parent's contact with the kids - you can either file for divorce and demand that the court grant you the right to see your children on given days or, if there are no plans for divorce or separation (but the parents don't live together any more), you can file a petition to establish visitation rights. 2. the parents were never married, but have split up - you can file a petition for visitation rights as soon as you break up/move out, there is no other way to settle this matter (it doesn't matter whether you lived with the other parent of the child or not).
It is important to remember that the court will never grant visitation rights that are general and non-specific (e.g. you want to pop in to your ex-partner's house whenever you feel like seeing your kids or you want to visit them e.g. 4 times each month when you have time for it). If you file a petition, you need to specifically determine on which days and for how long you want to see your child/children (e.g. every other weekend from Friday 6 p.m. to Sunday 4 p.m., every Wednesday from 3 p.m. to 8 p.m., etc.). It's a good idea to think ahead and include specific dates of all kinds of holidays (Christmas, Easter, summer and winter holidays).
When you have filed your petition for visitation rights, the copy of it will be served on the other parent and they will have to respond to it in writing. The judge will surely try their best to make both parents reach an agreement and if that proves to be impossible, both parents and the children will likely be examined by the expert witnesses (psychologists) who establish what's best for the kids (how often the parent requesting contact should see the children and for how long).
One more important point, though - even if your visitation rights have been established by the court and you come to pick up your child/children on a specific day but the child adamantly says she/he is not coming with you (or even cries), you can't force it. If you call the police to help you enforce your rights, they will most likely say they can't forcefully take the child. Therefore it's crucial to do one's best to maintain good relations with the children so that they are willing to spend some time with the parent not living with them.
4. Establishing and denying paternity under Polish law
Under Polish law paternity can be established in the following ways:
1. if a child was born during marriage or within 300 days of its termination (annulment, divorce, separation) the husband is deemed to be a child's father by virtue of law.
2. if a child was born out of wedlock, paternity may be established either by recognition of paternity or by the court.
Let's take a closer look at the first situation. Obviously the biggest problem will arise if the child is born to a married couple but the mother's husband is not the child's biological father (she had an affair). Under Polish law, the husband will be considered the child's lawful father with all the consequences that go with it. I've come across many cases when a woman got pregnant by her new partner and the child was born before the divorce was finalized or soon thereafter (but still before the lapse of 300 days after the termination of marriage). Even though the woman was in a new relationship and it was clear to all the parties involved who the child's father was, the woman's ex-husband was officially considered the child's father. In theory, he was obliged to financially support that child and decide about the most important matters concerning the baby. A man finding himself in such a situation may bring legal action for the denial of paternity within 6 months from the time when he found out about the birth of the child by his wife, but no later than when the child turns 18. Usually it is the 6 months after the baby was born so it's important to act quick (in most cases the husband knows of his wife's pregnancy). If he is sure that the baby is not his, he can't put off legal action until later - the court won't be forgiving if he fails to keep the 6-month-deadline for no important reason. On this note, if the child was conceived as a result of medical treatment (IVF) to which the husband consented, he won't be able to deny his paternity in the future .
Likewise, the child's mother has the right to bring legal action to deny the paternity of her (ex)husband within 6 months of the child's birth, so it's not only the presumed father who has the power to act. What's interesting it that also a child, upon turning 18, may bring legal action to deny paternity against the husband of his/her mother, but not later than 3 years after reaching the age of majority.
It's impossible to deny paternity after a child has died.
And now a few words about recognistion of paternity. First and foremost, if the paternity lawsuit is pending, the recognition of paternity is impossible, meaning that it's always one or the other.
Recognition of a child means that the biological father goes to the Registry Office and makes a declaration in writing that he is the father of the child. The child's mother has to confirm this fact within 3 months (usually the baby's parents go to the Registry Office together and in this way the child's paternity is established right away). An interesting fact - the mother may be as young as 16 to confirm the paternity of her child. The Head of the Registry Office may refuse to accept the declaration of paternity if there are doubts as to the child's parentage (which is extremely rare, of course). It is also possible to recognise paternity before the Polish consul or a person designated to perform the consul's function (provided that at least one parent of the child is a Polish citizen).
Paternity can also be recognised before the court (the procedure is very similar to that before the Registry Office, only the father has to file a petition for recognition of a child and declare before the judge that the child is his and the mother has to confirm it). Court recognition of a child doesn't happen very often.
Paternity cannot be recognised once the child turned 18, however, it's possible to recognise a child before it is born, but has already been conceived (also an extremely rare situation).
And now let's imagine the following situation: the child was born out of wedlock, the man recognised the child in the belief that he is their biological father but then it turned out that the child is not his. What to do then? The man who has recognised the child may bring legal action to establish invalidity of recognition within 6 months from the time when he found out that the child was not his (the same applies to the mother who can bring the same action). Such a lawsuit (for invalidity of recognition) may not be brought after the child has reached majority. Similarly to the procedure for denying paternity, the child, upon turning 18, but not later than 3 years after reaching that age, may also bring an action to declare invalidity of the recognition of paternity.
And now the last possible paternity-related scenario: the child was born out of wedlock, the man knows he is the child's father, but the mother will not confirm his paternity making it impossible to recognise the child in the Registry Office. What to do then? It is necessary to request that the court establish paternity of the child. Such a request may be submitted not only by you (the presumed father), but also by the child and the mother.
During the court proceedings regarding paternity the court will ask both parties if it's possible that the presumed father really is the biological father of the child and most likely also hear some witnesses (probably closest family members or friends). Sometimes both the mother and the presumed father confirm before the judge the paternity of a child and that will be sufficient for the court. If, however, the parties argue about the paternity, the court will commission a DNA paternity test, which will be a deciding factor in the case. If the mother has been denying that the man is the child's father and the tests prove his paternity, she will most likely bear the costs of such tests (which are not cheap, roughly PLN 2000).
On a final note: if all deadlines have been missed and nobody can bring an action for the denial/establishing of paternity or for establishing the ineffectiveness of recognition of a child, your last resort will be asking the public prosecutor to do it for you. Public prosecutors are entitled to bring such an action without any time constraints, as long as it's necessary to protect the child's welfare or is justified by the public interest.
5. Marriage under Polish law - basic facts
Only a man and a woman may enter into marriage in Poland. Same-sex couples cannot marry or make their relationship formal in any way. In Poland you can conclude marriage in two ways: you can do it in the Registry Office (civil ceremony) or you can have a church wedding which will also be legally binding. It is also possible to get married before a Polish consul while staying abroad.
What documents do you need to get married in Poland?
First of all - your ID and birth certificate. If you've been married before, you'll have to submit a document confirming that you're no longer married. You'll also be requested to submit a written declaration confirming that you are not aware of any circumstances preventing marriage. One additional requirement for the foreigners: you have to present a document confirming that according to the law of your home country you have legal capacity to enter into marriage. If obtaining such a document proves to be near impossible, a foreigner wishing to get married in Poland may petition Polish court to exempt them from this obligation. Needless to say, all the above mentioned documents have to be translated by a sworn translator.
If you want a registry wedding you can't have it right away. You'll have to wait a month from the date of submitting a declaration on lack of circumstances preventing marriage (however, you may ask the Head of the Registry Office to allow the marriage before this deadline for important reasons). If you've decided to have a church wedding, you still have to go to the Registry Office first and get a certificate (something like a marriage license) confirming lack of circumstances preventing marriage, as well as decide on your and your spouse's last names after the wedding (and the last names of your future children). The certificate is valid only for 3 months.
An interesting piece of information - under Polish law it's possible to get married while being represented by an attorney and not be present at your own wedding - it'll be enough if your attorney is there to get married on your behalf.
The legal age for marriage is 18 for both men and women. However, a woman may be 16 years of age if the court allows her to get married (provided that it's in the best interest of the newly founded family - in plain words: when a girl is pregnant).
A marriage may be annulled by the court for the following reasons:
- if one of the spouses, at the time of the wedding ceremony, was unable to consciously express his/her intention (for whatever reason, e.g. when under the influence of drugs);
- if one of the spouses entered into marriage due to an error as to the identity of the other party (=you thought you were marrying a different person);
- if one of the spouses got married under an unlawful threat from the other party or a third party and it is reasonable to assume that the theratened spouse could have feared serious personal danger to himself/herself or another person;
- a marriage may also be annulled due to bigamy, mental illness/retardation of one of the spouses, or the fact, that the marriage was concluded between direct blood relatives, siblings, immediate family-in-law or between the adopted person and the adoptive parent.
And what about the surname of the spouses after the marriage? There are three options: one of the spouses may assume the surname of the other spouse (both spouses end up with the same last name); each spouse may retain their current surname (the woman sticks with her maiden name) or one of the spouses (or both) combines their surname with that of the other spouse (double-barrelled surname). If you choose the last option, the surname may not be composed of more than two elements. The same applies to the surnames of the future children.
Under Polish law there is a legal institution called "separation" which is an alternative to divorce. The court may rule on separation when there has been a complete breakdown od marriage (= there are no longer any emotional, economic and physical bonds between the spouses). In case of separation the breakdown of marriage is not permanent (as is the case with divorce), so even though the spouses may legally be separated, there is still a chance for reconciliation. Similarly to divorce, separation is not permitted if it would be detrimental to the welfare of the children of both spouses or if there are any other reasons why the decision to separate might be seen as contrary to the principles of community life (that last premise prevents separation very rarely).
It's important to know that if one of the spouses demands a separation and the other spouse wants a divorce, the court will rule on divorce (the court may ultimately deny it altogether but the case will continiue as a divorce case).
When examining the petition for separation, the court decided on which of the spouses is at fault for the breakdown of marriage (unless both spouses demand that the court waive the ruling on fault or both spouses want separation). In its ruling on separation the court also rules on parental authority over a minor child, parental contact with the child and the amount of child support/maintenance. A separation ruling has the same effects as divorce (most of all - it creates the regime of separate property between the spouses) with one exception: a separated spouse may not get married. Separated spouses are obliged to help each other, if the situation requires it. If one of the spouses ends up being found solely responsible for the breakdown of marriage (which resulted in legal separation), the other, 'innocent' spouse may demand alimony/maintenance (not for the children but for themselves), as long as the separation entails a considerable deterioration of financial situation of that innocent spouse.
Spouses who have already been separated may, after some time, demand that the court rule on terminating separation which means that they go back to being married just as they were before separation.
Many couples decide to legally separate due to religious reasons or when they feel there is still a chance for them to get back together. In many cases separation ultimately ends in divorce and becomes a transitional stage between the time when one of the spouses moves out and the time when both spouses (or one) decide that there are no chances for restoring the marriage.
8. What happens when parents fail at their responsibilities towards their child?
According to the Polish Family and Guardianship Code, in case of any negligence towards a child the court may issue relevant restriction orders which are supposed to control parents who are failing at their role.
The judge may in particular require the parents to behave in a certain way or send them to institutions or therapists providing family therapy and counselling. This is the mildest 'restriction' applied in situations where things like counselling can help (obviously, the court will check if the parents do what they were ordered and if they have ignored the court's order harsher restrictions will be imposed).
The judge may also determine what actions cannot be made by the parents without the court's permission - this could happen when a child has their own money and/or property (e.g. inheritance) and there have been suggestions that the parents mismanage the child's property. If the court finds it to be true, it can forbid the parents to sell any of that property or spend the child's money.
The next restriction that the judge can impose is the supervision of a court-appointed custodian. A custodian will regularly check on the family and see if the parents fulfill their responsibilities appropriately.
If it's clear that the parents can't raise their child on their own (for whatever reason - it could be negligence, illness, addiction etc.), the judge will order that the child be placed into foster care or a children's home. However, if the parents' situation later improves, it's possible to regain custody of their child.
The court issues the above mentioned restrictions after it has found out about the problem in a given family (through other pending family cases or when it has been reported by the school, neighbours, relatives etc.).
If you are witnessing an alarming situation concerning the children (maybe something happening next door), you should immediately inform the police or a local social welfare centre about your suspicions.