Article 378 of the Civil Code provides that in the event of disagreement between the parents, the residence of the common minor child may be set alternately at the home of each parent or at the home of one of them.
The Luxembourg Courts regularly point out that the alternating custody system, in order to be implemented, must be in the best interests of the child and not of the parents.
The Courts consider that the aim of alternating custody must be to promote the child’s development and not to meet the sole desire of one of the parents to satisfy demands for strict parity. It should be pointed out in this respect that the quality of the relationship between a parent and his or her child, the impact that a parent can have on the education, training and harmonious development of his or her child and the depth of the affection felt are not solely or even essentially a function of the number of days or hours spent with one parent or the other, but derive as much from the regularity of the contacts and a certain duration of these as from the intensity of the relationship and the sincerity of the feelings (Court of Appeal 20 October 2021 n°CAL-2021-00517)
The system of alternating residence will also not be allowed, in principle, when the child is young (up to the age of 6). The Courts consider that this would considerably reduce contact with the mother. This would not be in the child’s interest (Court 12 June 2019 no. 110/19). The Courts consider that the child establishes from birth for obvious biological reasons a particular and selective bond with the mother. This attachment provides the child with a feeling of security that is essential for his or her development and social adaptation. Alternating residence with a young child separates him from his main attachment figure, thus creating a feeling of insecurity in the child (Court of Appeal 4 December 2019 Pas 39, page 613).
Alternating custody is not completely excluded, but is only possible if it allows for continuity in the child’s lifestyle, which implies a certain proximity between the two parental homes. The Courts also consider the relation between the parents as an essential part to decide whether an alternate residence could be an option.
It is not necessary for the parents to be in perfect harmony, but there must be a minimum of coherent and peaceful dialogue between the separated parents. This understanding is facilitated when the parents share the same life rhythms and educational concepts and methods. It is obvious that a child who does not have the same sleeping time from one week to the next will inevitably feel disturbed, and his constant moves between the homes of his two parents require an adaptation that he must be able to overcome. Educational methods must remain continuous from one home to the other, as prohibitions imposed by one parent and swept aside by the other can profoundly destabilise the child (Court of Appeal 9 October 2019 n°183/19).
