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Parents   »   Children’s rights during separation

Children’s rights during separation

Approximately 65,000 children per year have parents who are separating, and the vast majority adjust well to their new life situation. To assist parents in reaching agreements on decisions regarding the children’s residence and lives after the breakup, it is important for parents to consider the children’s legal rights.

Children have the right to a voice and opinion even if they don’t have the final say

  • Children have a legal right to express their views and feelings and to tell how they feel and how they would like things to be. However, it’s the parents (custodians) who decide and are responsible for ensuring that the children are well cared for after the separation and are given the opportunity to have a good and close relationship with all their parents.
  • As a parent, you have no rights over your children. It’s their best interests that should determine parental decisions, such as where the child should live, where the child should go to school, and how often the child should see parents they don’t live with the most.
  • When parents have joint custody of the children, you should make decisions together on important matters concerning the child. If you cannot agree, the option that is best for the child should be chosen. Always what is best for the child. Never based on the parents’ needs and opinions about what is most fair for the parents. Children’s rights according to the law Parents do not have an unconditional right to their children. It is exactly the opposite.

Their rights are clearly regulated by law

Parents do not have an unconditional right to their children. It’s quite the opposite.

The rights are clearly regulated by law.

The best interests of the child shall be paramount in all decisions regarding who should have custody of the child, where the child should reside, or how often the child should visit the parent they do not reside with. The child’s need for close and good contact with both parents shall weigh heavily in the decisions. Consideration shall be given to the child’s wishes depending on the child’s age and maturity.

Children and Parents Code Chapter 6 §2A

Children who do not live with both parents should have the right to regularly meet with both of them.


“The child has the right to express their opinion in all matters concerning them. When courts and authorities handle cases involving the child, the child should be heard and the child’s interests placed at the forefront. The child’s right to freedom of thought, conscience, and religion shall be respected.


When does the child get to decide for themselves?

There’s a common misconception that when a child turns 12, they get to decide on all matters regarding custody, residence, and visitation. That’s not true. Regardless of age, the child has the right to express their opinion in all matters concerning them, but it’s only when they are mature enough to fully understand the significance of maintaining contact with both parents that they can also make decisions regarding custody, residence, and visitation. This is why it’s common for courts not to consider the child’s wishes in their judgments. Even though the child should always have the opportunity to express their desires, the responsibility for making very important decisions that will significantly impact their lives cannot be placed on a younger child.

Children need encouragement to spend time with both of their parents

It is common that adult children of divorce, who grew up with only one parent, feel that they wished someone had encouraged them when they did not want to spend time with their other parent. Without spending time together, relationships cannot be built, and without relationships, one cannot experience companionship and fellowship with the other parent. Only if one parent is violent, abusive, or suffering from mental illness, it may be necessary to protect a child from that parent. Otherwise, the starting point in Swedish law is that children generally thrive when they regularly meet and spend time with both (or all) of their parents. Swedish law currently recognizes only two legal parents, even though many children today grow up in rainbow families with sometimes three, four, or more parents.

What does the child’s best interest mean according to the law?

There are as many opinions about what’s best for children as there are parents. Many psychological studies have been conducted on children’s best interests. Malin Bergström is one of the researchers in the Elvis project, which has been researching since 2011 how children’s well-being is affected in shared residence.

In Swedish law, a practice has developed through court decisions where various issues concerning the best interests of children have been evaluated. When courts decide on the matter, the fact that children benefit from having a close and good relationship with both parents weighs heaviest. Other factors that play a significant role in the legal assessment can be summarized roughly as follows:

  • The child’s need for a close and good relationship with both parents outweighs if one of the parents is careless, forgetful, or bad at communicating and cooperating. There must be very serious reasons for the courts to consider it better for the child to have only one guardian, not to have contact with or regularly meet both parents.
  • Children thrive on continuity, which is why it’s generally not considered best for them to change anything they have established as safe and familiar. For example, it’s not considered better for the child to move to another location and have to change schools if they have lived in one place for a long time, gone to school, and established a community and security with one parent, friends, or relatives in the area where the child lives.
  • The principle of proximity. It should not be unnecessarily difficult for the child to travel to and from school, friends, or other family members.
  • The parent who best meets the child’s need for both parents is often considered the best guardian and/or residential parent.
  • Parents should cooperate as much as possible on matters concerning the children. If there are serious deficiencies in parenting due to violence, substance abuse, or illness, it is considered in the child’s best interest for the other parent to have sole custody.
  • Having more caring adults is considered safe for the child.
  • If both parents are equally suitable, it’s best for the child for the parent who best meets the child’s need for contact and a close relationship with the other parent to be awarded custody or become the residential parent.

Elisabeth Scholander