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Studenteropgave: Kandidatspeciale og HD afgangsprojekt

  • Victoria Hustad Ødegård
  • Stine Marie Buverud Timland
4. semester, Jura, Kandidat (Kandidatuddannelse)
This master’s thesis contains an analysis of cases where the custodial parent obstructs the contact between the child and the other parent without due cause. The thesis is based on the basic principle that a child has the right to have two parents and that the parents have a shared responsibility to protect this right.

The breakdown of relationships happens frequently in today’s society, and in many cases the parents arrive at an amicable solution regarding the question of custody in a way that maintains the child’s interests. However, the question must be asked: what happens in cases where the parents cannot reach such an arrangement? Parental conflicts are also a common occurrence in a relationship breakdown. Approximately 10-12 percent of all Danish divorces have a high level of conflict that can last for years after the breakup.1 What is not shown in this statistic is the number of non-marital relationships, and therefore the number might be considerably higher.

In some cases, the conflict will escalate to the level where one parent will use the child as a weapon to harm the other parent. This is most commonly done by interrupting the contact between the child and the parent, in many cases without realizing that they are hurting what they hold most dear. According to a Danish documentary released in 2022, over 300 children lost contact with one of their parents in 2021, due to such conflicts.2 What is often easily overlooked during the breakdown of the parents' relationship is therefore the conflict's effect on children. Who is responsible to protect the rights of the child, when their parents are frustrated and hurt, to such an extent that they commit custody harassment towards the other?

In recent years there has been a lot of attention around the issue of custody harassment in Denmark. In 20123 and 20154 legislation was passed containing numerous measures to prevent the issue. Furthermore, in 2019, changes were made to Danish family law with the goal of a more holistic system where the rights of the child is the main focus. Even though there are a number of good measures that in many cases will prevent custody harassment, there are still cases where the measures are proven insufficient to prevent the custodial parent from blocking visitation rights etc. It is therefore important to have a system that can eradicate the problem.

In this master’s thesis there will, due to the reasons stated above, be conducted an analysis of the legal ramifications that exist in current Danish legislation and case law. The legal consequences include enforcement of visitation rights and that the Danish courts rule in custody, guardianship, and visitation issues, where parents can’t reach an agreement. The clear ruling principle for the ruling is “the best interest of the child” in article 3 of the “Convention on the Right of the Child”5, which is ratified by Denmark. It has furthermore been implemented into Danish law and is the basis on which all considerations concerning the child should be conducted.

Based on the analysis of the preparatory works, legislation, and recent case law regarding custody harassment, it can be concluded that applicable law on the subject is quite clear. It is important to note that guardianship cases are highly complex, with competing considerations regarding the child’s interest. Rulings regarding guardianship cases are often invasive for all parties involved, since, for example, one parent might lose their guardianship and custody of the child moved from one parent to the other. Naturally, all rulings must also be made as an assessment on the facts of the case, as well as the child’s interest in a narrow scope. It is therefore not possible to formulate clear precedents that can be applied to future cases. It must also be noted that the purpose of the measures and the court’s reaction is not to punish the custodial parent for their conduct, but merely to ensure that the interests of the childs and the child’s right of contact with both parents are not unduly infringed.
Udgivelsesdato17 maj 2023
Antal sider71
ID: 528941531