According to the Civil law, until the age of majority, the child is in the custody or as it is called “under the care” of parents. Custody means parental care of the child, its upbringing, development, and provision of everything necessary for him.

Both parents have custody rights.

If the parents do not live together, joint custody of the child continues.

Often the parent with whom the child lives, believes that the second parent has no longer custody of the child, and he can no longer and should not participate in the upbringing of the child. This is one of the most common misconceptions regarding custody issues.

A parent who does not live with the child, has the right and obligation to participate in the upbringing, care and development of the child, in other words, make decisions together with the second parent on issues of education, health, travel, etc. The difference is that the parent with whom the child does not live has the right to meet and is obliged to help support the child, i.e. to pay alimony.

Parents can also agree on separate custody, which means that only one of the parents- the one with whom the child lives on an ongoing basis, will have custody. If one of the parents does not agree to separate custody, it can be asked to establish through the court.

It is important to note that the separate custody of the parent is determined not only based on the will of the latter, but also taking into account the interests of the child. The law does not establish the priority of one or the other gender of the parent in the issue of establishing separate custody. The decision is made based on the emotional and psychological connection of the child with each of the parents, as well as the ability and willingness each of the parents to provide their child with appropriate living conditions.

A separate custody of the parent is regarded as necessary in situations where the parent and the child take root abroad, and it takes a long time to resolve issues important for the child with a second parent who lives in another country. Also, when the child’s parents cannot agree and make a unanimous decision about the child’s upbringing, education and care; there are disagreements between the parents on a permanent basis, which prevents the adoption of a decision that affects the best interests of the child.

One of the most common disagreements that occurs is when the parent and the child move abroad and change their place of residence, without informing and having a consent from the second parent.

If the parents have not agreed in writing and in the form of a notarized act on the separate custody of one of the parents, the parent with whom the child lives does not have the right to change the country of residence of the child without the consent of the second parent.

If the parents cannot agree on the moving the child abroad, then the parent with whom the child lives can file a lawsuit to appoint separate custody of the child or to determine the place of residence with the parent with whom the child lives outside of Latvia.

Separate custody of one parent does not mean that the second parent is deprived of custody.

This means that the parent with whom the child lives has wider scope of rights in matters that affect the development, education and health of the child.

In other words, the parent with a separate custody can make decisions independently, for example, choosing a preschool or school, changing a family doctor, etc.

The second parent, as mentioned above, has the right to receive information about the child and his daily routine, see and spend time with the child, but has no longer the right to make decisions in matters affecting the child’s life.

According to Civil Law, custody of a child by a parent or parents can be terminated or withdrawn (deprivation of custody of a child). It should be noted that terminated or withdrawn custody rights can be restored.

I

According to Civil Law, an Orphan’s court (Bāriņtiesa) may decide to terminate the custody of the parent if:

• There are actual obstacles to the parent’s ability to care for the child (for example, the parent is ill and physically unable to care for the child, the parent is in detention);
• The child is in unfavourable circumstances for health or life due to the fault of the parents (deliberate actions or neglect) (for example, the child remains helpless, the child is not provided with food, clothing, the child lives in unsanitary conditions);
• The parent abuses their rights or does not provide care and supervision for the child;
• The parent has consented to the adoption of the child, except in cases where he, as a spouse, has agreed that the child is adopted by the second spouse;
• Violence by parents against a child has been identified or there are reasonable suspicions of abuse by parents (physical, sexual and emotional abuse).

If the custody of the child is terminated by one of the parents, the second parent would have custody rights. In cases where the custody rights are terminated for both parents, the Orphan’s court appoints a foster family for the child.

Terminated guardianship rights can be restored within a year if the parent eliminates the existing violations and cooperates with the Orphan court.

If it is not possible to restore custody rights within a year, the Orphan’s court decides to file a lawsuit to the court for deprivation of custody rights.

There is no doubt that substantial violations are necessary to terminate the custody of the parent. For example, failure to provide child support does not justify termination of custody.

Custody of a child may be terminated only by decision of an Orphan’s court. An Orphan’s court cannot decide on the deprivation of custody.

II

A parent can be deprived of custody rights if:

• The child’s health or life is at risk due to the parent’s fault (intentional act or negligence by the parent);
• The parent abuses their rights or does not provide care and supervision to the child, and this may endanger the child’s physical, mental or moral development.

Deprivation of custody means that the parent can no longer exercise his rights and obligations as a parent and is no longer the legal guardian of the child.

As mentioned above, a parent may be deprived of custody on the basis of a claim by an Orphan’s court if, after the termination of custody, the parent was unable to correct the violations within a year, as a result of which the orphan court decided to terminate custody.

A parent can also be deprived of custody of the child on the basis of a second parent’s lawsuit, which must be filed to the court. If one of the parents is deprived of custody, the court places the child under separate custody of the second parent.

If the second parent is also unable to exercise sufficient custody of the child, custody can be revoked for both parents, then the Orphan’s court provides care for the child outside the family, for example, in a foster family.

Only the court has the right to decide on the deprivation of custody of the parent.

From the conclusions of the judicial practice of the Supreme Court, we can conclude that when deciding on the deprivation of custody, it is necessary to establish abuse by the parent in relation to the child, as well as guilty and active behaviour, or inaction, which directly threatens the health and life of the child or its physical and moral development.

In other words, actions or inaction directed against the child must be direct, deliberate and substantial.

III

Custody rights that have been terminated or deprived may be restored. The decision to restore the terminated custody is made by the Orphan’s court, assessing whether the parent has eliminated the existing violations, whether he has cooperated with the Orphan’s court and is ready to take on parental responsibilities.

The court shall decide on the restoration of deprived custody rights.

A parent who has been deprived of custody rights can file a lawsuit to restore custody rights if he believes that the circumstances that served to deprive them of custody rights have changed. The court, considering the lawsuit, asks for the conclusion of the Orphan’s court, in order to make the best decision that will not harm the interests of the child.

Guardianship rights are quite fragile elements and can be terminated or selected by state institutions if the parent or parents threaten the interests, life or health of their child.