Contact between parents and children is one of the fundamental rights (and, at the same time, obligations) arising from the unique relationship that exists between them. Its exercise frequently encounters difficulties, however — in such situations, the intervention of the court becomes necessary.
Right and Obligation
Article 113 § 1 of the Family and Guardianship Code (Kodeks rodzinny i opiekuńczy) states expressly that parents and children have both the right and the obligation to maintain contact with one another. This obligation exists independently of parental responsibility (meaning that a parent who has been deprived of parental responsibility may, and indeed should, still maintain contact with the child). Contact is both a privilege (parents should not be prevented from maintaining a relationship with their child without good reason) and a commitment (a parent ought not to evade contact, and should they do so, negative consequences may follow).
When Everything Functions Well
It is clear that in the vast majority of cases, the manner in which contact between parents and a child is exercised is agreed upon by the parents themselves, cooperatively and by mutual consent — even where they no longer share a common household. In such circumstances there is no need for the court to intervene, in keeping with the principle characteristic of family proceedings: so long as matters are functioning and the welfare of the child is not at risk, external interference in the life of the family is unnecessary.
This does not mean, however, that formalising even a mutually agreed contact arrangement is impossible or inadvisable. It is frequently worthwhile for such arrangements to be recorded in some form and even approved by the court (for instance by way of a mediation settlement agreement, or alternatively a written agreement), so that in the event of any future dispute there is a document to which the parties may refer. This need not, however, require engaging the court as an arbitrator empowered to make a decision binding even upon a party who disagrees with it.
Absence of Agreement
The guardianship court (sąd opiekuńczy) intervenes when parents are unable to reach agreement. In making a determination in this regard, the court is guided above all by the welfare of the child and the child’s needs, taking into account, amongst other matters, the child’s current circumstances (so as not to introduce changes of such a far-reaching nature as might disturb an established routine), the nature of the child’s bond with each parent, and each parent’s capacity for child-rearing.
Where the child’s needs so warrant, the court may restrict the manner in which contact is exercised by one of the parents — for example by prohibiting in-person meetings, permitting contact only in the presence of the other parent or a court-appointed supervisor (kurator), and so forth. Such a significant intervention may be justified by a history of contact being exercised in an inappropriate manner, or by other circumstances indicating that unrestricted contact between that parent and the child may pose a risk to the child’s welfare (for example, a threat of violence or of the child being removed from the jurisdiction). In the most extreme cases, the court may prohibit a parent from having any contact whatsoever with the child — this occurs where the threat to the welfare of the minor is actually materialising, or is of a genuinely serious nature.