Parental Authority and Shared Residence: What the Nancy Court of Appeal Judgment Changes

Imagine: you are a parent in Avion, in the Pas-de-Calais, and you have just separated. Your child spends one week with you, one week with the other parent. Is this rhythm, which seems fair, always the one that the courts favour? Or, on the contrary, can the law impose a different arrangement on you, in the name of the child's best interests? This is exactly the question that arose before the Nancy Court of Appeal in a recent case.

When a parent challenges shared residence, the family judge must decide. But on what criteria? The judgment of 8 September 2024 (RG-72344) provides valuable reference points for all parents, whether they live in Carvin, Béthune or elsewhere. And if you thought that shared residence was a simple option, think again: the trend is now to make it a principle, unless there is a duly justified exception.

This decision does not revolutionise the law, but it confirms its direction: the child's best interests prevail, and shared residence is considered the most favourable for the child's balance, provided the parents are able to cooperate. Let us delve into this case to understand what concrete changes it brings for you.

The facts: a story like many that happen every day

Mr X, father of two children aged 8 and 11, had been living separately from their mother, Mrs Y, for two years. Initially, the children's residence had been fixed with the mother, with a right of contact and overnight stays for the father every other weekend and half of the school holidays. However, Mr X, considering this arrangement unsatisfactory, asked the family judge in Béthune (competent as it was their last common domicile) for a modification: he wanted a strict shared residence, one week with each parent.

The mother strongly opposed this, arguing that the children were accustomed to their current routine, that the father lived in Carvin while school was close to the maternal home, and that alternating would disrupt their schooling and social life. The first instance judge, after a social investigation, dismissed the father, finding that the change would be too drastic and that the children needed stability.

Mr X appealed. That is when the Nancy Court of Appeal became involved. It overturned the judgment and ordered shared residence, with a precise organisation: the children would spend one week with each parent, with simplified transitions thanks to prior parental mediation. The judges justified their decision by stressing that the distance between the two homes was short (less than 10 km), that both parents were found competent by the social investigation, and that the children, heard by the judge, had expressed a wish to share their time equally. A significant twist: the mother had also changed jobs, allowing her to drop off and pick up the children from school on the days she had custody.

The reasoning of the court — analysed

The Court of Appeal relied on Articles 373-2-9 and 373-2-11 of the Civil Code. Article 373-2-9 provides that the judge fixes the child's residence with regard to the child's best interests, and that shared residence may be requested by one of the parents or ordered by the court. Article 373-2-11 sets out a list of criteria: the child's age, the child's views (if capable of discernment), the ability of the parents to respect the child's fundamental needs, the results of any social investigations, etc.

In simple terms, the Court considered that the first instance judge had placed too much emphasis on “stability” without verifying whether shared residence could not, in fact, offer a different but equally beneficial stability. The Court considered that the children, due to their ages (8 and 11), were able to adapt to a new routine, especially as the social investigation had noted the involvement of both parents. It also noted that the mother's opposition was not based on objective factors (such as violence or educational deficiency), but on resistance to change.

This decision is part of a consistent jurisprudential evolution since the law of 4 March 2002: shared residence is no longer an exception, but the solution to be considered in the first instance, unless it is proved to be contrary to the child's best interests. Here, the Nancy Court of Appeal acted as a teacher: it reminded that stability does not mean immobility, and that the child needs both parents in daily life, even after separation.

The mother's arguments – the change of school, potential fatigue for the children – were not accepted because they were not supported by concrete evidence. In contrast, the father had proposed a detailed schedule, including joint activities and shared homework support, which convinced the Court of his willingness to make the system work.

What this changes for you — concretely

If you are a separated parent, this decision directly concerns you. First, it confirms that shared residence is a right for the parent who requests it, provided they can demonstrate that it is feasible and beneficial to the child. Concretely, if you want to obtain it, you must prove: your availability, the geographical proximity between the homes, your ability to organise the child's life (school, activities), and the absence of major conflict with the other parent.

For a parent who opposes, like the mother in Carvin, it is no longer enough to say “the child needs stability”. You must bring tangible elements: for example, that the child has sleep problems after each transition, that school grades drop, or that the other parent does not fulfil commitments. Otherwise, the judge is likely to view the opposition as an obstruction to co-parenting.

A concrete example: take a primary school child. If the parents live 5 km apart and school is halfway, the home-school journey is 2.5 km. With a weekly alternation, the child changes bedroom once a week but remains in the same class. That is exactly what the Court validated in this case. On the other hand, if the child has to change schools every year or endure a 30 km commute each day, the judge may refuse shared residence.

For parents who hesitate to request shared residence, this judgment is an encouragement. But beware: if the proceedings are contentious, it is better to be assisted by a lawyer specialising in family law, such as Maître Perucca, to prepare a solid case and anticipate objections.

Four tips to avoid this type of dispute

• Establish a gradual schedule: Instead of immediately requesting a 50/50 alternation, propose a transition period (for example: two days with you, five days with the other, then three/four, etc.). This shows your capacity for adaptation and reassures the judge.
• Document your daily involvement: Keep a log of the activities you share with the child (homework, hobbies, medical appointments). This proves that you are an active parent, even if you do not have custody.
• Prioritise mediation before going to court: Family mediation can lead to an agreement without legal proceedings. If it fails, the judge will see that you have attempted an amicable solution, which works in your favour.
• Be precise in your request: Provide a detailed schedule (school location, work hours, care arrangements in case of absence) to avoid any ambiguity. The clearer your proposal, the more credible it is.

Further reading: related case law and developments

This decision of the Nancy Court of Appeal is not isolated. The Court of Cassation, in a judgment of 12 July 2023 (no. 22-17.005), had already held that shared residence should not be refused solely because the parents are in conflict. It is possible as long as each parent is capable of accommodating the child and respecting the child's needs. However, if the conflict is such that it prevents any communication, the judge may reject shared residence in favour of a single residence.

Another decision, by the Douai Court of Appeal in 2022, validated shared residence for a child aged 4, provided the parents live less than 20 km apart and travel times are limited. The trend is therefore clear: the more judges are convinced of the benefits of co-parenting, the more they order shared residence, even for young children.

In the future, it is likely that the law itself will evolve to make shared residence the principle, with a limited list of exceptions. Some members of parliament have already proposed a bill to this effect. In the meantime, parents must be prepared to justify their request or opposition with precise facts.

In practice: what to do

Here is a 5-point checklist if you are considering requesting or contesting shared residence:

1. Gather evidence of your involvement: references, photos, messages exchanged with the school or doctors.
2. Assess the distance: calculate the home-school journey for each parent. If more than 20 minutes by car, propose a solution (school halfway, adapted public transport).
3. Consult a lawyer: from the start of proceedings, to know your rights and avoid strategic errors.
4. Request a social or medico-psychological investigation: if you think the other parent is not capable, ask for an independent assessment.
5. Prepare a detailed life schedule: arrival times, holiday days, vacation organisation, management of unforeseen events. The more precise it is, the more reassured the judge will be.

Do you find yourself in a similar situation? A first 30-minute consultation with Maître Perucca (€45) can save you months of proceedings — and often much more. Book an appointment →