Although at first „glance”, given the current legislation, it seems impossible, a final divorce decree can, in specific cases, be modified to a certain extent.
This possibility was provided for by the legislator in Article 106 of the Family and Guardianship Code, according to which, if the best interests of the child require it, the guardianship court may change the ruling on parental authority and the manner of its exercise contained in a judgment declaring divorce, separation or annulment of marriage, or determining the origin of the child.
The guardianship court is the family court, or more simply put, the appropriate division of the district court, dedicated to the settlement of precisely family matters. The local jurisdiction will be the court of the child's residence. Thus, we are faced with an unusual situation, where the decision of the district court is modified by the district court.
The only prerequisite for filing a request to change the ruling on parental authority is the welfare of the child. At the same time, as indicated in the case law, a change in the ruling on parental authority cannot be made due to improper conduct of the parent entrusted with its exercise - from the period before the divorce was pronounced. Thus, the basis for the application will be circumstances that arose after the divorce was decreed and that make the child's welfare endangered for some reason. These circumstances will include, for example, a lack of interest in the child's affairs, failure to provide proper care for the child, or neglect of the child's basic needs.
In the application, you should indicate any arguments that support the idea that it is the other parent who should be entrusted with the exercise of parental authority, instead of the parent who has fully exercised this authority so far. Evidence from witnesses will be useful, and a private opinion from a child psychologist may also prove helpful. It is also worth remembering to include in our letter a request for security, the granting of which by the Court will result in our claim being secured already for the duration of the proceedings.
A change in the ruling on the exercise of parental authority is most often associated with the fact that the way of fulfilling the child support obligation, which until now was most often fulfilled in the hands of the other parent, becomes obsolete. Unfortunately, this issue can not be resolved in proceedings initiated under Article 106 of the Family and Guardianship Code. This is because, unlike the case for alimony, it is a non-contentious proceeding, regulated by separate rules. An action to determine the termination of the alimony obligation should be brought in separate proceedings, based on the provision of Article 138 of the Civil Code.
A petition to amend a divorce judgment with regard to the ruling on parental authority is subject to a fixed court fee of PLN 100.
It is worth mentioning that a ruling on the exercise of parental authority can also be amended under Article 577 of the Code of Civil Procedure. However, this mode, unlike the one described above, applies to rulings already made by the guardianship court.
