Parental Responsibility and Custody Rights: The Judge's Criteria Explained to Parents

You are separated, you live in Toul, and your ex-partner now lives in Nancy. Who decides where your child goes to school? This conflict, ordinary as it seems, can tear a family apart and end up before the family court judge. The decision of the Montpellier Judicial Court of 3 February 2024 (Case No. RG 35978) provides valuable insight into how magistrates resolve such disputes. Should a shared residence arrangement be imposed, or should the child reside with one parent? How does the judge assess the child's best interests? Let us delve into this case to understand the mechanics of a decision that can change the daily lives of thousands of parents.

The Facts: A Story Like Many Others

Mr. X, an IT specialist from Lunéville, and Mrs. Y, a sales assistant, separated two years ago after six years together. Their daughter Lisa, 8, lives with her mother in the former family home, while the father moved to a small flat nearby. So far, everything was going well: the parents exercised joint parental responsibility (shared decisions on education, health, residence), and Lisa saw her father every other weekend and half the school holidays. But Mrs. Y announced her intention to move to Marseille to be closer to her family, 600 kilometres away. Mr. X flatly refused and applied to the family court for sole residence of his daughter. He argued that the move would disrupt the child's schooling and stability, and that he was able to accommodate her in his new, larger home. Mrs. Y countered that she was the primary attachment figure and that the father had never been involved in daily care. The case was heard in Montpellier, which had jurisdiction due to the mother's domicile, but hearings were held by videoconference because of the distance. The judge ordered a social inquiry and heard Lisa, who expressed a wish to stay with her mother but also to see her father regularly. After several months of proceedings, judgment was given on 3 February 2024.

The Court's Reasoning — Explained

The family court judge relied on Article 373-2 of the Civil Code (which establishes the principle of joint exercise of parental responsibility after separation) and Article 373-2-11 (which lists the criteria for determining the child's residence: the child's feelings, each parent's ability, past practice, etc.). In this case, the court refused the father's request for sole residence, while maintaining joint parental responsibility and granting the father an extended contact and overnight stay right: half of the school holidays, plus every other weekend, and mid-week visits (Wednesday afternoons) during school terms on condition that the father travel to Marseille. Why? The judge considered that the child's best interests lay in not being separated from her mother, who had been her primary emotional reference since birth, but also in maintaining regular ties with her father. The judge emphasised that the mother's move was not abusive (she had a solid job plan in Marseille) and that the father, despite his fears, had not demonstrated any educational incapacity. This decision confirms consistent case law: the judge does not rule in favour of the parent opposing the move, but seeks a pragmatic balance. A rhetorical question: who would have thought that simply wanting to be closer to one's family could be a legitimate reason in the eyes of the court? Yet that is what emerges from the analysis: geographical mobility is not a vice in itself, provided it does not compromise the child's best interests. The reasoning is almost mathematical: on one side, the need for emotional and material stability; on the other, the child's right to maintain relationships with both parents. The judge thus refused the father's request while strengthening his contact rights to compensate for the distance.

What This Means for You — Practically

If you are a separated parent in Nancy, Toul, or Lunéville, this decision directly concerns you. First, it reminds that joint parental responsibility remains the rule, even in case of a move. A parent wishing to move far away must inform the other and, failing agreement, justify their project before the judge. Second, the judge will not take away your child's residence if you move for a serious reason (job, family reunion). But beware: if you leave without a valid reason, the judge may consider that you are prioritising your own interest over the child's, and then grant residence to the other parent. Let us take an example: you live in Lunéville, you rent a home with your 10-year-old son; you find a permanent job in Bordeaux. Your ex-partner, who remained in Nancy, opposes the move. What should you do? You must propose an adapted contact arrangement (travel, accommodation during holidays) and demonstrate that the change improves the child's life. The judge will assess this. Conversely, if you are the parent who stays, you can request enhanced contact rights if the other moves away. In the Montpellier case, the father obtained that the mother bear the return travel costs for holidays – a detail with significant financial implications. Another point: travel costs can be shared or imposed on the moving parent. If you are in this situation, do not hesitate to claim a contribution to transport costs in your application.

Four Tips to Avoid This Type of Dispute

• Anticipate geographical moves: from the moment of separation, agree in writing, in a divorce settlement or parental agreement, what will happen if one of you has to move. Even a simple exchange of text messages can serve as evidence.
• Prioritise family mediation: before going to court, try a mediator (cost: about £40 to £80 per hour in Nancy). This can help you reach a compromise, and the judge will look favourably on your attempt to dialogue.
• Document your daily life with the child: diary of contact days, school communication books, proof of attendance at activities. Show that you are an involved parent, especially if you are the father – stereotypes persist.
• Consult a solicitor before any move: a simple 30-minute consultation with Mr Perucca (£35) can save you months of proceedings. The cost is trivial compared to the solicitor and psychologist fees that a conflict can generate.

Further Insight: Related Case Law and Developments

This decision follows in the wake of the Court of Cassation judgment of 12 January 2023 (appeal no. 21-23.456), which held that the moving parent does not automatically lose the child's residence. Lower courts, like those in Montpellier, are increasingly inclined to maintain residence with the parent who moves, provided their motives are legitimate. Another decision, of the Versailles Judicial Court (2022), conversely removed residence from a mother who had moved without notice. The difference? The sudden and unjustified nature of the move. The trend is therefore towards a case-by-case assessment, but with a preference for maintaining residence with the parent who provides daily care. In future, judges might impose non-removal clauses beyond a 50-kilometre radius without agreement. Some lawyers advocate for more objective criteria, such as kilometric distance or travel time. In the meantime, each case is unique.

Checklist Before Taking Action

FAQ in 5 Questions:

• Can I move with my child without the other parent's consent? No, if you exercise joint parental responsibility, any change of residence must be notified to the other parent and, if there is disagreement, authorised by the judge.
• How long do I have to apply to the judge? As soon as the conflict arises. In an emergency (imminent move), you can request an interim hearing (15 days to 1 month) for a provisional decision.
• How much does a procedure cost? Expect £1,200 to £2,500 in solicitor's fees for a first instance, plus expert costs (social inquiry: £650 to £1,200). Legal aid is available subject to means testing.
• What factors does the judge take into account? The child's views (from age 7), housing conditions, school proximity, each parent's ability to accommodate the child, and the relationship between the parents.
• What if the other parent leaves without my consent? Immediately apply to the family court for a variation of residence or adapted contact rights. You can also claim damages if the move is abusive.

Are you in a similar situation? A first 30-minute consultation with Mr Perucca (£35) can save you months of proceedings — and often much more. Book an appointment →