Judgment 6696/2024 (Child Custody and Shared Residency)

The following decision is the second act of a judicial dispute concerning the regulation of issues regarding custody, residency, maintenance, and visitation between parents and their minor child. The decision demonstrates that the regulation of "shared residency" does not necessarily equate to "equal parenting time" but rather it refers more to the quality/type of parenting time and less to the allocated time between parents.

Our client, a father of a three-year-old girl, found himself suddenly separated from his wife when she decided to leave the marital home with their daughter. Due to the inability to reach an agreement on child-related issues, which is necessary for a consensual divorce, the parties were forced to pursue the judicial route. Each parent filed for interim measures with a combined request for the issuance of a temporary order. The mother requested temporary exclusive custody of their daughter, that the child's residence be set at the home she had moved to, that the father be obligated to pay child support, and that she be allowed to take several movable items from the former marital home, which she deemed necessary for their living in the new environment. The father requested joint custody of the minor by a shared residency system, and in case of rejection of this request, a visitation schedule with the child.

The requests for the issuance of a temporary order were jointly heard in the courtroom of the Single-Member Court of First Instance of Thessaloniki, and with the decision issued, temporary joint custody of the minor child was granted to both parents. The mother's residence was set as the child's place of residence, the father was ordered to pay €600 per month for child support, the mother was allowed to take the movable items she requested from the former marital home, and a communication schedule between the father and the child was established.

The above temporary order had two peculiarities: The first was that it set such an extensive visitation schedule between the father and the child that it almost equally divided the child's time with both parents, having the characteristics of a shared residency system, despite being characterized by the court as a "visitation schedule". The second peculiarity was the particularly high proportion of the father's contribution to the child's living expenses, which was clearly disproportionate to the spouses' incomes and the (almost) equal time the parents would spend with their daughter. The outcome of the temporary order was considered successful, despite the high amount of child support for the father, since the most significant aspect was the visitation time, which was, given the circumstances of the case, the maximum possible that could be achieved.

Life inevitably continued with the parents and the child trying to adapt to the new reality that had been formed.

In May 2024, the interim measures petitions of the parents were discussed in court. On our part, we tried to maintain the achievements for the father, i.e., the extensive visitation schedule, aiming to further expand it, if possible, by adding two overnight stays for the child at the father's home, so that the time spent with each parent would be completely equal. At the same time, we sought to demonstrate the evident disproportion of the father's contribution to the child's living expenses, as set by the temporary order, in order to reduce it to a reasonable amount. The mother, on her part, sought to further increase the child support amount and reduce the father's visitation time.

With the below judgment issued on the parents' petitions, temporary joint custody of the minor was granted to both parents with an shared residency system. The child's place of residence was set at both parents' homes for the specific periods set by the court judgment. At the same time, the father's proportion of contribution to the child's living expenses was reduced to a reasonable amount. The table below compares the temporary order and the judgment issued on the interim measures’ petitions.

The temporary order provided for the father's visitation schedule with the child, including a) shared holidays during Easter, Christmas, and summer, b) stays with overnight stays at the father's residence every other weekend including Friday, and c) visitation time every Tuesday and Thursday immediately after the child’s dismissal from kindergarten until late in the evening, when the father had to return the child to the mother's residence. In other words, it was a visitation program that, if it provided overnight stays at the father's residence on Tuesday and Thursday, the parenting time would be completely equal for parents. However, overnight stays at father’s home, even if provided, would be of minor importance since real time cannot be dedicated to the child during the night due to sleep. Therefore, the father's visitation schedule with the child, as regulated by the temporary order, had the characteristics of shared residency with equal parenting time between parents, despite not being characterized as such.

The decision issued on the precautionary measures petitions specified: a) shared holidays during Easter, Christmas, and summer, b) stays with overnight stays at the father's residence every other weekend including Friday, and c) the father's visitation with the child every Wednesday immediately after the child’s dismissal from kindergarten with an overnight stay at the father’s home, so the father had to drop the child off at school on Thursday morning.

Thus, with the decision on the precautionary measures (which set a “shared residency system”), the father "won" an overnight stay, but "lost" a midweek visitation day that had been set by the temporary order (which set a "visitation schedule").

We therefore conclude that an "extended visitation system" might be more beneficial for the parents than a "shared residency system".

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[Excerpt from the Court Judgment Partially Edited for Clarity]

The applicants entered into a lawful religious marriage in Thessaloniki on [date]. During their marriage, they had one minor child, [child's name], born in 2021, who is three years old at the time of this hearing. Their marital relationship did not progress smoothly, and as of October 2023, they have been separated with the intention of permanently dissolving their marriage. Following the separation, the wife moved out of the former family home in Thessaloniki, located on [street name], and relocated to an apartment in Thessaloniki, on [new street name]. Their relationship remains tense and marked by antagonism and hostility.

The tension arises because the wife believes that her husband prioritizes his professional obligations and personal needs over family matters, is particularly attached to his parents, and is excessively influenced by them on family issues and the upbringing of their minor child. This results in the husband undervaluing his wife's opinions and showing a contentious attitude towards her.

This assessment by the wife regarding the husband's behavior was not found credible. There was no indication that the husband neglects his minor child or her proper upbringing. On the contrary, it was established that he loves and genuinely cares for their daughter, actively participates in her education, and ensures her smooth psychosomatic development and best interests. He has developed a close emotional bond with her and dedicates significant time to deepening their relationship, which was disrupted due to the parents' separation and the change in her residence. His insistence on taking his daughter from her mother's home at the times specified by the temporary order issued on 20.10.2023, and the patience he shows when the minor, who resists changes in her routine, initially does not want to leave her current residence, demonstrate his genuine interest in being actively involved in her upbringing and education, and dedicating substantial time to restore and strengthen their emotional bond. After the wife left the former family home and the child’s room equipment was delivered to her, in compliance with the temporary order issued on 20.10.2023, the husband promptly replaced this equipment so that the child, when staying with him, can spend her time productively and pleasantly and reconnect emotionally with his residence.

Similarly, it is considered that the wife is also worthy and capable of caring for their daughter, as she has developed a close emotional and psychological bond with the minor, breastfed her until at least October 2023, and spent a lot of quality time with her, facilitated by her maternity leave and the teleworking arrangement that allowed her to work from home.

From the evidence presented, it appears likely that both parents are equally committed and capable of raising their child with love, special interest, serious intent, and mental readiness. Despite their separation, both parents continue to show love and affection for the minor child, taking care of her upbringing, supervision, and physical and mental health and development. They are both able to provide a calm and stable environment for her.

This conclusion is supported by the sworn testimonies of witnesses examined in court.

The court's judgment regarding the father's suitability to fulfill his parental duties equally with the child's mother, whose suitability was not disputed by the mother, is not undermined by the sworn statement of the witness [witness's name], the mother of the applicant. Her testimony is considered unreliable because she has lived abroad for at least six years, and thus, her knowledge is based on what the applicant has told her rather than firsthand experience.