Inequality between parents in alternating residence arrangements (TAS 40/2021, issued on 15 March 2021)
The Ombudsman for Equality was asked to give a statement on the problems related to arrangements in which children reside alternately with each parent (alternating residence). The party requesting the statement considered that the Ministry of Justice's guideline on assessing the amount of child maintenance payments (Ministry of Justice publication 2007:2) does not adequately address cases in which children reside with different parents in alternate weeks. According to the request for a statement, the residence deduction specified in the guideline does not sufficiently take into account the costs incurred by the secondary parent from having the child visit them.
The amount of child maintenance payment is provided for in the Child Maintenance Act. Pursuant to section 2 of the Child Maintenance Act, both parents are responsible for providing maintenance for their child to the best of their ability. In evaluating the ability of each parent to make maintenance payments, attention is given to their age, fitness for work and prospects of gainful employment, the amount of assets available to them and, where applicable, their other statutory maintenance obligations.
According to section 4 of the Act, a parent can be obliged to pay child maintenance if the parent does not otherwise see to the child’s maintenance, the child does not reside permanently with the parent, or the child resides alternately with the parent and the child's other parent or custodian. The amount and form of child maintenance is confirmed by an agreement or judgment.
On the residence deduction, the aforementioned Ministry of Justice guide on assessing the amount of child maintenance states, for example, that the average number of overnight stays per month is decisive in assessing the extent of residence with the secondary parent for the purposes of determining the amount of the residence deduction. Both regular weekend meetings and similar meetings and longer periods of residence on holidays are counted in the number of overnight stays. The total number of nights is then divided by twelve. The amount of the residence deduction is thus increased by longer periods of residence, for example in the summer, calculated into the average. The amount of the residence deduction and, consequently, child maintenance payment is nevertheless the same for each calendar month.
The guide includes a table for calculating the residence deduction, showing the amount of the deduction according to the child’s age and extent of residence. The monetary amounts presented in the guide are based on the assumption that the parent meeting with the child only pays the child’s necessary costs of living during the visits. If the parents have agreed that the child spends an equal amount of time with both parents and they share the costs incurred from the child equally, the parents can naturally also agree on a larger deduction than that given in the guide.
According to the guide, the maximum amount of residence deduction is 66 euro (child aged 13–17 stays with secondary parent for 13–15 nights per month).
The position of alternating residence families should be improved
A study has been published on the alternating residence of children in Finnish (Publications of the Government’s analysis, assessment and research activities 2020:51 Lasten vuoroasuminen ja sosiaaliturva; Vuoroasumisen nykytila ja merkitys etuus- ja palvelujärjestelmän kannalta). According to the study, the alignment of alternating residence and social security currently involves a number of issues, and children and parents with alternating residence arrangements are not treated equally. In addition to housing allowance, the parents who took the survey described problems with school transport and obtaining information on matters involving the child.
Children's residence arrangements affect both the children's and their parents’ rights to social security and many services. In practice, children residing alternately with each parent have two homes but, for many benefits and services, the child’s official address decides which parent is entitled to the benefits related to the child or where they can obtain services.
However, benefits and services play a role in how smooth everyday life is between two homes. For the first time in Finnish legislation, the amended Child Maintenance Act that entered into force in December 2019 provides for alternating residence as an option for a child’s living arrangements. In addition to recognising its legal status, addressing alternating residence requires a reassessment of the bases on which many social benefits and rights are determined. Some of the key questions include the extent to which both parents are entitled to social benefits or services, or how such benefits will be divided between the parents.
The Ombudsman for Equality noted that, according to section 4 of the Equality Act, authorities must in all their activities promote equality between women and men purposefully and systematically, and must create and consolidate administrative and operating practices that ensure the advancement of gender equality in the preparatory work undertaken on different matters and in decision-making.
The alignment of alternating residence with the social security system entails a number of problematic areas, and children and parents with alternating residence arrangements are currently not being treated equally. Furthermore, the Ministry of Justice’s guide for determining the amount of child maintenance does not specifically address alternating residence, and the residence deductions specified in the guide are not applicable to alternating residence in their current form.
In his statement, the Ombudsman for Equality found that the position of families with alternating parenting arrangements should be improved with regard to housing allowance and other social benefits in order to support equal alternating parenthood. The Ombudsman for Equality considers it important that the social welfare authorities who confirm child maintenance agreements be made aware of legal practice in this field (incl. KKO:2001:140, KKO:2010:38, Turku Court of Appeal 2020:10), for example by reworking and updating the Ministry of Justice’s guide on determining the amount of child maintenance. Alternating residence should be recorded in child maintenance agreements in a manner that reflects the actual arrangements made between the parents.
The Ministry of Justice has sent this statement to the Ministry of Justice and Ministry of Social Affairs and Health for information.
06.04.2021
