Children's rights

When parents separate, questions quickly arise about permanent residence, visitation, and parental responsibility. In all such cases, there is one legal principle that weighs most heavily: the best interests of the child .

But what does the best interests of the child mean in practice – and how is it assessed in a child custody case?

This article provides a thorough and professionally grounded review of what the law says, which assessment factors are central, and what is decisive if the case is heard in court.

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What is in the child's best interest?

The best interests of the child are a statutory principle in the Children's Act . This means that all decisions about children after a breakup should be based on what is best for the child overall, and not the wishes of the parents.

The principle is also anchored in the UN Convention on the Rights of the Child , which applies as Norwegian law. The Convention states that the best interests of the child shall be a fundamental consideration in all actions affecting children.

There is no standard solution that is automatically considered correct. The assessment must always be:

• Concretely
• Individual
• Holistic

Two children in seemingly similar situations may therefore receive different solutions, because the child's age, maturity, attachment and needs vary.

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How is the best interests of the child assessed in a child custody case?

The court makes an overall assessment that includes several factors. No single factor is decisive on its own.

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1. Stability and continuity

Stability is a weighty consideration in Norwegian case law. The court considers, among other things:

• Who has had the daily care?
• Where the child has had their primary home
• Connection to local community, school and friends
• Risk of rupture in established relationships

Continuity is often particularly important for younger children. Here you can read what applies to child custody when the children are young.

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2. Parents' ability to care

The parents' ability to care is assessed broadly and includes:

• Ability to provide emotional support
• Ability to create structure and predictability
• Boundary setting and safety
• Mental stability
• Ability to shield the child from conflict

A key part of the assessment is also the parents' ability to cooperate . If one parent actively opposes the child's contact with the other, this may weaken that person's case.

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3. The child's right to participation

Children have the right to be heard in matters that concern them. According to the Children's Act, children who are capable of forming their own views shall be given the opportunity to express their views.

The older and more mature the child is, the greater the weight the child's opinion is given.

Nevertheless, it is important to clarify: The child does not have decision-making authority. The court must make an independent assessment of what is best.

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4. Risk, violence and other stresses

If there is:

• Violence or threats
• Drug problems
• Serious mental illness
• High and persistent level of conflict

This could be of decisive importance. The child's need for security and protection takes precedence over considerations of equal distribution or the parents' wishes. In cases involving allegations of violence, the court conducts a special risk assessment.

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Shared permanent residence – when is it in the best interests of the child?

Shared permanent residence means that the child lives permanently with both parents and that decisions are made jointly. In this article you can read more about the different distribution models.

The court considers, among other things:

• Do the parents live close to each other?
• Are they able to cooperate?
• Can the child tolerate frequent transitions?
• Does the child want such a solution?

If the conflict is high, shared housing can create more stress than security.

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Typical misconceptions about the best interests of the child

There are several common misconceptions:

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"The child should always live mostly with the mother."

There is no such general rule. Parents are legally equal.

Here you can read more about balance in parental responsibility and father's rights in child custody.

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“Equal time is always fairest.”

Fairness between parents is not the issue of assessment. What is crucial is the child's needs.

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"The child can choose freely when he turns 12."

The child's opinion should be given great weight from this age, but the court makes the final decision.

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What happens if the parents don't agree?

Before the case can be brought to court, the parents must attend mediation. If mediation does not lead to progress, the case can be taken to court.

The court may:

• Appoint an expert psychologist
• Conduct conversations with the child
• Obtain documentation
• Hold the main hearing

The process can be both legally and emotionally demanding.

If you want a thorough review of how a child custody case is handled, what phases the case goes through and what you should prepare for, you can read this article .

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Summary

The best interests of the child is a legal standard that requires a concrete and forward-looking overall assessment in each individual case. Important points are:

• Stability and continuity
• Caring ability
• Cooperation
• The child's opinion
• Risk and safety

In child custody cases, it is not the parents' rights that are at the center - it is the child's need for security, development and predictability.

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Do you need help or legal advice in a child custody case? Contact our lawyers for a free, no-obligation consultation.

When the child protection service considers taking over the care of a child, it is based on strict criteria laid down in the Child Protection Act. The purpose is to ensure the best interests of the child and protect it from serious neglect.

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Proceedings in the event of a report of concern

The process often starts with a report of concern from a person who is worried about the child's situation. The Child Protection Service is then obliged to review the report within a week to assess whether there are grounds for further investigation. If there is reasonable reason to assume that the child is living in conditions that could harm their health or development, an investigation is initiated. The threshold for initiating an investigation is low.

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The investigation phase

In the investigation phase, the child welfare agency collects information about the child's care situation. This may involve conversations with the child, the parents and other relevant people, as well as home visits. The examination must be thorough, but at the same time gentle, and must normally be completed within three months.

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Possible outcomes of the survey

After the investigation, the child protection agency can conclude that:

• No action: If no worrisome conditions are discovered, the case is closed without further action.
• Voluntary aid measures: If there is a need for support, the child protection service can offer measures such as guidance, relief, institutional placement or other forms of assistance. These measures require parental consent.
• Behavioral measures: If the child has shown serious behavioral difficulties, the child protection agency can decide that the child should be placed in a child protection institution or in a foster home, against the child's and parents' consent. The child can also be placed in a child protection institution if necessary to meet the child's immediate needs for protection and care.
• Taking over care: In serious cases where the child's health or development is at risk, and voluntary measures are not considered sufficient, the child protection agency can file a case for taking over care before the Child Welfare and Health Board.
• Emergency decision : If there is a risk that the child will suffer significant damage if the decision is not implemented immediately, the child protection agency can make an emergency decision about taking over care and placement in a child welfare institution.

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Conditions for taking over care

In order for the child welfare services to be able to take over the care of a child without the parents' consent, there are strict conditions that must be met:

• Serious neglect: There must be serious deficiencies in the day-to-day care or in the personal contact and security the child needs in relation to his age and development.
• Lack of follow-up of special needs: The parents do not ensure that a sick, disabled or particularly needy child has his special needs for treatment and education met.
• Abuse or abuse: The child is exposed to abuse or other serious abuse in the home.
• Serious risk to the child's health or development: It is overwhelmingly likely that the child's health or development may be seriously damaged because the parents are unable to take sufficient responsibility for the child.

Before taking over care can be decided, it must be assessed whether it is possible to achieve a satisfactory care situation through voluntary assistance measures. Care takeover must only be used when less invasive measures are not sufficient.

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The decision-making process

It is the child welfare and health board that makes decisions about taking over care. Parents have the right to legal assistance during the process, and children over the age of 15 have party rights and thus also the right to legal assistance. The tribunal assesses whether the conditions for taking over care have been met. What is decisive for any assessment made in child welfare cases is what is in the best interest of the child in the specific situation.

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Emergency decision

In situations where there is a risk that the child will suffer significant damage if measures are not taken immediately, the child protection service can make a temporary emergency decision to take over care. This decision can be appealed. The parents and children who have reached the age of 15 have the right to legal assistance in the appeal process.

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After taking over care

When care has been taken over, the child is usually placed in a foster home or in an institution. The parents retain parental responsibility, but the childcare service has day-to-day care. Emphasis is placed on maintaining contact between the child and the parents through visitation, unless this is considered harmful to the child.

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Return of care

The parents can later apply for the return of care. For this to happen, it must be overwhelmingly likely that the parents can provide the child with proper care. Child welfare services have a duty to regularly assess return and assist the parents in achieving the necessary changes. Twelve months must elapse from the time the taking over of care takes place, until an assessment of the question of restitution can be demanded for the first time.

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Taking over care is a serious and invasive measure that is only used when the child's health or development is in serious danger, and less invasive measures are not sufficient. Child protection must always act in the child's best interests and in accordance with the law's strict conditions.

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If the child protection service is considering taking over the care of your child, or has already done so, it may be a good idea to contact a child protection lawyer who can represent you as parents or the child if he has reached the age of 15. The lawyer can contribute with his experience and knowledge of how the case should be handled in the best possible way, while at the same time ensuring your rights. A lawyer can also act as a supporter in a challenging time and as an adviser who helps the child welfare services to get a balanced and correct impression of the family situation.

Insa lawyers regularly assist both parents and children aged 14-15 in connection with their child protection case. Get in touch if you need a lawyer.

After a break-up, parents must, among other things, agree on parental responsibility, where the child will live permanently and visitation arrangements, also called child distribution. When parents do not agree on the distribution of children, it may be necessary to bring the case to court. Here is an overview of the process and what you should be aware of.

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1. Mediation – first step

Before a child distribution case can be taken to court, mediation at a family welfare office is mandatory. The aim is to help the parents come to an agreement about the child's place of residence, visitation and parental responsibility. After the mediation, a mediation certificate is issued, which is necessary to be able to proceed with the case.

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2. Summons – to bring the matter before the court

If the mediation does not lead to an agreement, one of the parents can submit a summons to the district court in the child's area of residence. The summons should contain a clear description of what the case is about and what demands are put forward. It is often wise to seek legal assistance to ensure that the subpoena is correctly drafted and that you get what you want to get.

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3. Case preparation meetings - try to find solutions

After the summons and response have been received, the court will convene preparatory meetings. These meetings aim to get the parties to agree on an agreement without a full trial. It is common for the parents to bring a lawyer with them, but the judge is most concerned with hearing the parents' views on the case and getting them to reach an agreement. An expert, often a psychologist specializing in children and families, can be appointed to assist in the process and provide insight into what is in the best interests of the child. In many cases, it is possible to agree on a temporary agreement that will apply for a certain time until the next meeting. In the best case, a permanent arrangement is agreed upon in the first case preparation meeting. In the worst case, a time is agreed for a trial.

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4. Main hearing – the heart of the trial

If agreement is not reached in the case preparation meetings, the case goes to the main hearing. Here both parties present their arguments, witnesses can be brought, and the expert presents his assessment. The court will then make a decision based on what is considered to be in the best interests of the child.

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5. After the court decision – what happens next?

Once the court has made a decision, it is binding on both parties. If one of the parents disagrees with the verdict, the case can be appealed to the Court of Appeal within a given deadline. It is important to note that the appeal process may entail additional costs and time consumption.

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Costs – what should you expect?

The costs of a child custody case can vary significantly depending on the complexity and duration of the case. Lawyers' fees, expenses for experts and any court fees must be taken into account. In some cases, it may be possible to get free legal aid, depending on income and assets.

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The best interests of the child – the overriding principle

In all child distribution cases, consideration of the child's best interests is decisive. The court considers factors such as the child's attachment to each parent, stability, ability to care and the child's own wishes, depending on age and maturity.

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Practical advice - prepare well

• Documentation: Collect relevant documentation that can support your point of view, such as communication between the parents, school or nursery reports.
• Legal assistance: An experienced lawyer can provide valuable guidance throughout the process and help protect your and your child's interests.
• Focus on the child: Always keep the child's best interest in focus. A good cooperation between the parents, even during disagreements, is often the best for the child.

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Going through a child custody trial can be challenging. Good preparation, understanding of the process and focus on the best interests of the child can contribute to a more constructive solution.

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Do you need a lawyer in child custody ? Feel free to contact Insa lawyers for a conversation with one of our lawyers. It's completely free.