Child Custody in Belgium after Separation: Parental Authority, Residence and Child Maintenance

When parents separate, three decisions arise at the same time and are often confused: who decides (parental authority), where the children live (the residence arrangements) and who pays for what (child maintenance). Together they make up what most people call child custody in Belgium, yet legally they are separate questions, and they also apply to parents who were never married. Understanding this leads to a calmer discussion, and to sharper proceedings if a court case does become necessary.

1. Parental authority

After a separation, parental authority in principle remains joint. Both parents take the important decisions together: school, health, religious or philosophical upbringing, place of residence and leisure. Moreover, towards third parties acting in good faith, such as the school, the doctor or the bank, a parent acting alone is presumed to act with the other parent’s consent (Articles 373 and 374 of the old Civil Code, oud Burgerlijk Wetboek / ancien Code civil).

Only where the child’s interests so require may the family court (familierechtbank / tribunal de la famille) grant the exercise of parental authority exclusively to one parent. Poor communication is generally not enough; what is required is the complete absence of the other parent, serious incidents, or cooperation that proves structurally impossible. The court may also limit exclusive authority to specific areas or, conversely, specify which decisions still require the consent of both parents. The parent who does not exercise authority in principle retains the right to personal contact with the child and the right to supervise the child’s upbringing (Article 374, § 1 of the old Civil Code).

2. Residence arrangements for the children

If at least one parent asks for it, the court must first examine the possibility of equally shared residence (gelijkmatig verdeelde huisvesting / hébergement égalitaire), often called co-parenting in practice (Article 374, § 2 of the old Civil Code). Priority does not mean it is automatic, however. If equally shared residence is not the most appropriate solution, the court may set a main residence with one parent and secondary residence with the other. The court must give specific reasons for that choice.

What really carries weight? The age of the children, the distance between both homes and the school, the parents’ working patterns, the existing factual situation and whether the parents are able to keep to practical arrangements. A well-prepared file therefore contains no accusations, but concrete information: timetables, distances, school reports, the organisation of holidays. You can read more in our article on residence arrangements and co-parenting.

The child’s views also count. Children aged twelve and over are informed by the family court of their right to be heard; younger children can ask for this themselves (Article 1004/1 of the Judicial Code, Gerechtelijk Wetboek / Code judiciaire). The child is not a party to the proceedings and does not decide: the judge takes the child’s views into account.

The main residence generally also determines where the child is officially registered (domiciliëring / domiciliation), as a child can only be registered at one address. That address matters for tax purposes and for the payment of family allowances (gezinsbijslag / allocations familiales, known as the Groeipakket in Flanders); with equally shared residence, the tax benefit for dependent children can, subject to conditions, be divided between the parents (Article 132bis of the Income Tax Code 1992 – Wetboek van de inkomstenbelastingen / Code des impôts sur les revenus). Taking this into account is no minor detail: it involves real money every month.

3. Child maintenance

Both parents contribute, in proportion to their means, to the housing, living costs, health, supervision, upbringing, education and development of their children (Article 203 of the old Civil Code). That obligation continues until the child’s education is completed, even after the age of majority.

There is no legally binding calculation method. The judge must, however, state which elements were taken into account (Article 1321 of the Judicial Code), such as both parents’ incomes, the residence arrangements, the children’s costs and family allowances. Calculation methods such as the Renard method provide guidance, but do not bind the judge. You can read more in our article on child maintenance.

For children, Belgian law speaks of a maintenance contribution (onderhoudsbijdrage / contribution alimentaire). Maintenance between former spouses is a different concept with its own conditions (Article 301 of the old Civil Code); between former cohabitants, it does not in principle exist.

Ordinary and extraordinary expenses

Child maintenance covers ordinary expenses: food, clothing, day-to-day care. In addition, there are extraordinary expenses (buitengewone kosten / frais extraordinaires): exceptional, necessary or unforeseeable costs arising from accidental or unusual circumstances (Article 203bis of the old Civil Code), such as orthodontic treatment, glasses or certain school costs. A Royal Decree of 22 April 2019 specifies which costs fall into this category and provides that, except in cases of urgency or proven necessity, they require prior consultation and agreement. Your agreement should state which costs require prior consultation and within what time limit they must be reimbursed: this is the most common source of new disputes.

A children’s account

Many parents use a joint children’s account into which each pays a fixed amount and from which the children’s costs are paid. If well agreed and properly monitored, it is an efficient arrangement; without clear rules on who may spend what, it becomes a new battleground.

Child custody in Belgium: who decides if you cannot agree?

The family court, as a rule the one for the child’s domicile (Article 629bis, § 2, of the Judicial Code), has jurisdiction over all disputes concerning parental authority, residence and child maintenance. In cases involving minor children, the law presumes urgency (Article 1253ter/4, § 2, of the Judicial Code), so the court can impose an interim arrangement at short notice pending a final decision. More on urgent and interim measures.

Once an arrangement is in place, the case also remains permanently pending before the court (blijvende aanhangigheid / saisine permanente, Article 1253ter/7 of the Judicial Code). If new elements arise, you can bring the case back without having to start entirely new proceedings.

Mediation: often faster, cheaper and more durable

An agreement supported by both parents lasts longer than an imposed judgment. You can call on an accredited family mediator; the family court also has an amicable settlement chamber (kamer voor minnelijke schikking / chambre de règlement à l’amiable). Once approved (homologated) by the family court, the agreement is enforceable in the same way as a judgment.

In a divorce by mutual consent, the court reviews the arrangements for the children in light of their interests; the full procedure is described in our overview of divorce in Belgium. Wherever possible, we work towards an agreement: not to avoid conflict, but because it is the least harmful path for the children.

Novex Advocaten

We assist parents in negotiating an agreement and also conduct the proceedings where necessary, in Dutch, French, English and Arabic. Send us an outline of your situation, including the children’s ages, the housing situation and both parents’ incomes, and we will set out which arrangement is realistic.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.