Child Custody in Belgium: How Does the Family Court Decide on Residence?

Where will the children live after the separation? No question weighs more heavily emotionally, and none is weighed more carefully by the family court (familierechtbank / tribunal de la famille). Whether you are considering shared residence on a week-on, week-off basis or primary residence with one parent, child custody in Belgium (legally: the residence arrangement, verblijfsregeling / hébergement) starts from a clear legal rule, but the outcome depends on the family’s actual situation and, above all, on the best interests of the child. This article explains how parental authority and residence relate to each other, how the judge decides and how best to support your position.

Parental authority and residence: two different things

Parental authority (ouderlijk gezag / autorité parentale) covers the important decisions in the child’s life: school and education, health, upbringing, leisure and religious or philosophical choices. After a separation, both parents in principle continue to exercise that authority jointly (Article 374, § 1, former Civil Code – oud Burgerlijk Wetboek / ancien Code civil). Towards third parties acting in good faith, such as the school or a doctor, a parent who acts alone in a matter of parental authority is presumed to act with the other parent’s consent (Article 373, second paragraph, former Civil Code). That presumption protects the third party, but does not relieve the parents from consulting each other on important choices.

If the parents disagree, or if their agreement is contrary to the child’s interests, the court may entrust the exercise of parental authority to one parent, wholly or partly. In practice, this happens only exceptionally. The other parent then keeps the right to personal contact with the child and the right to supervise the child’s upbringing.

Residence (verblijf / hébergement) concerns the question of where the child lives and when. It is separate from authority: with joint authority, a parent with whom the child stays less often still takes part in the important decisions. For more context, see our overview on separating with children.

Child custody in Belgium: shared or primary residence?

• Equally shared residence (commonly called co-parenting or shared custody), often week-on, week-off or another rhythm in which the child spends roughly equal time with each parent;
• Primary residence with one parent and secondary residence with the other, for example every other weekend and half of the school holidays;
• all kinds of intermediate arrangements, tailored to the child’s age and the parents’ work schedules.

The legal starting point: equally shared residence is examined first

If the parents agree on residence, the court approves (homologates) their agreement, unless it is manifestly contrary to the child’s interests. If they disagree and exercise authority jointly, the court will, at the request of at least one parent, examine as a priority the possibility of equally shared residence (Article 374, § 2, former Civil Code).

This is a duty to examine, not an automatic outcome. If the court considers that equally shared residence is not the most appropriate solution, it may order unequal residence. It must give specific reasons for that choice, taking into account the concrete circumstances of the case and the interests of the children and of the parents. The child’s best interests remain the yardstick.

What does the judge look at?

The law contains no list of criteria: it refers to the concrete circumstances and to the child’s interests, which the judge assesses case by case. In case law, the factors include:

• the child’s age and needs;
• the distance between the homes and the school;
• each parent’s availability and working hours;
• how care was shared before the separation;
• communication and cooperation between the parents;
• the child’s stability and bond with each parent;
• the child’s views, if the child has been heard.

The child’s right to be heard

Children aged twelve and over are informed by the court, by means of an information form, of their right to be heard by the judge. They may decline. Younger children may be heard at their own request, at the request of a parent or the public prosecutor (openbaar ministerie / ministère public), or on the judge’s own initiative (Article 1004/1 of the Judicial Code).

The interview takes place without the parents, and a report is drawn up. Being heard does not mean deciding: the child does not become a party to the proceedings, and the judge weighs the child’s views, in line with the child’s age and maturity, against all the other factors.

Looking for a solution together first

An arrangement the parents work out themselves usually holds up better than one imposed on them. The family court therefore has an amicable settlement chamber (kamer voor minnelijke schikking / chambre de règlement à l’amiable), where parents can seek an agreement under the guidance of a judge. They can turn to it themselves, free of charge and without formalities, or be referred to it by the judge.

An accredited mediator can also help. An agreement reached in this way can be approved by the court, so that it can be enforced. Where married parents separate, the residence arrangement can also form part of a divorce by mutual consent.

The procedure before the family court

The parents can have their agreement recorded by the family court. If they disagree, the court imposes an arrangement after a hearing at which both parents explain their position.

In urgent cases, a provisional arrangement can be requested quickly. More on urgent and provisional measures.

Decisions concerning children are never entirely final. In cases brought since 1 September 2014, the family court remains seised (Article 1253ter/7 of the Judicial Code): if new elements arise, the case can be brought back before it without a new writ of summons. A change does, however, require new elements and a well-documented file.

Building your case

Anyone asking for a particular arrangement must show that it is workable: suitable housing, practicable schedules and a concrete plan for school, childcare and leisure. Criticising the other parent rarely convinces; a realistic, child-focused plan does. Keep messages and agreements, and keep a record of how the arrangement works in practice.

Residence and child maintenance

The residence arrangement has a direct impact on how costs are shared. The parent with whom the child is staying bears the day-to-day costs during that time. Parents bear the child’s costs in proportion to their means (Article 203, former Civil Code), and when calculating maintenance the judge takes into account, among other things, the residence arrangement (Article 1321 of the Judicial Code – Gerechtelijk Wetboek / Code judiciaire).

Equally shared residence therefore does not automatically mean that no child maintenance (onderhoudsbijdrage / contribution alimentaire) is owed: where there is a large difference in income, or where one parent bears most of the fixed costs, a contribution may still be justified.

Frequently asked questions

Can a parent simply move away with the children?

A move that affects the residence arrangement or the child’s school is an important decision. With joint authority, it generally requires the other parent’s consent or, failing that, a decision of the family court. A move abroad without consent may also amount to wrongful removal of the child (international child abduction), namely where the move breaches the other parent’s rights of custody (Article 2(2)(11) of Regulation (EU) 2019/1111; Hague Child Abduction Convention of 25 October 1980).

What if the other parent does not comply with the arrangement?

Document every refusal. Options include a penalty payment (dwangsom / astreinte), a review of the arrangement and, in serious cases, criminal proceedings for failure to hand over a child (niet-afgeven van kinderen / non-représentation d’enfants; Article 677 of the Criminal Code, for offences committed from 1 September 2026). A lawyer can help you choose the appropriate response.

Will a twelve-year-old’s choice be followed?

The child can be heard, but does not decide. The judge places the child’s views in the full picture.

Do we need to go to court if we already agree?

It is not compulsory. An agreement approved by the family court can, however, be enforced; a private arrangement must first be brought before the judge if it is disputed.

Novex Advocaten can help

Does a residence arrangement need to be set, changed or challenged? We build a child-focused case and defend your position before the family court, in Dutch, French, English or Arabic. See also our article on child maintenance.

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