Shared custody and the child benefit payment in Poland – who receives it and how is it divided?

For many divorced parents sharing custody of their child, a question arises that has no obvious answer: who receives the state child benefit payment when the child spends equal time with both parents? Polish law provides an answer – but to take advantage of it, specific formal requirements must be met.

Table of contents

1. What is shared custody and how is it regulated in Poland?
2. Who receives the child benefit payment under shared custody arrangements?
3. How is shared custody documented?
4. The practical paradox – a problem with court judgments
5. Practical guidance
6. FAQ

What is shared custody and how is it regulated in Poland?

Shared custody (opieka naprzemienna) is a model of childcare in which both parents exercise care for a comparable amount of time – the child alternates between the two households. Poland has no provision in the Family and Guardianship Code (Kodeks rodzinny i opiekuńczy) that explicitly defines shared custody. The concept does, however, appear in the Act of 11 February 2016 on state assistance in raising children (ustawa o pomocy państwa w wychowywaniu dzieci), which governs the child benefit payment.

The absence of a statutory definition means that in practice courts order shared custody arrangements in different ways – sometimes using the term explicitly, more often describing the arrangement through a contact schedule (for example, the child alternates between the parents on a weekly basis) without labelling it as shared custody. This has direct consequences for the possibility of splitting the benefit payment between the parents.

Who receives the child benefit payment under shared custody arrangements?

Under the Act on state assistance in raising children, where shared custody exists, the child benefit is payable to each parent in the amount of half the benefit. Since 1 October 2023 the benefit amounts to PLN 800 per month – each parent exercising shared custody can therefore receive PLN 400 per month.

The condition for splitting the payment is that the shared custody arrangement is documented. The Act requires that shared custody be established by a court order or by a settlement concluded before a court or a mediator. The fact that the parents are in practice sharing care on an alternating basis, without a document confirming this, is not sufficient.

How is shared custody documented?

The primary document is the court judgment or settlement from which it follows that the child spends a comparable amount of time with each parent. The application for a split benefit is submitted to the competent authority (the mayor or head of the local authority) and must be accompanied by the order or settlement confirming the shared custody arrangement.

This is where a significant practical problem arises.

The practical paradox – a problem with court judgments

Polish family courts rarely use the phrase “shared custody” explicitly in the operative part of their judgments. More commonly they establish a contact schedule – for example, the child alternates weekly between the parents – without naming this model as shared custody. For the authorities responsible for awarding benefit payments, the absence of this specific phrase in the judgment was sometimes used as grounds to refuse to split the payment.

The Supreme Administrative Court (Naczelny Sąd Administracyjny, NSA) addressed this issue in its ruling bearing reference I OSK 1378/17, holding that recognition of a shared custody arrangement cannot be made conditional on the literal use of the phrase “shared custody” in the operative part of the judgment. What matters is whether the content of the order shows that a shared custody model is in fact in operation – that is, whether the child spends a comparable amount of time with each parent.

This ruling has important practical implications. Parents whose court orders do not contain the words “shared custody” but establish a schedule that corresponds to this model of care may rely on this ruling in proceedings concerning the child benefit payment.

In our experience, many parents are unaware of this possibility and do not apply for a split payment because they cannot see the relevant phrase in their judgment. This is a mistake that is worth correcting.

Practical guidance

Where the court has established a contact schedule corresponding to shared custody – for example, alternating weeks with each parent – but the judgment does not explicitly refer to “shared custody,” it is possible to rely on the NSA ruling (reference I OSK 1378/17) and apply for a split benefit payment.

Where custody proceedings are still ongoing, it is worth ensuring that the judgment or settlement contains an explicit reference to shared custody. This makes it considerably easier to obtain a split of the child benefit payment later.

Where the authority refuses to split the payment, an appeal to the supervisory authority is available, and thereafter – if the decision is upheld – a complaint to the administrative court. The NSA’s case law supports parents exercising genuine shared custody.

FAQ

How much is the child benefit under shared custody in Poland? Since 1 October 2023 the child benefit (świadczenie wychowawcze) amounts to PLN 800 per month. Under shared custody, each parent can receive half of that amount, i.e. PLN 400 per month.

What documents do I need to apply for a split benefit? A court order or a settlement concluded before a court or mediator from which shared custody follows. Where the judgment does not contain the phrase “shared custody” explicitly but establishes a schedule corresponding to that model of care, it is possible to rely on the NSA’s case law.

What if the judgment does not mention “shared custody”? The Supreme Administrative Court (reference I OSK 1378/17) held that recognition of shared custody cannot depend solely on the literal use of that phrase in the operative part of the judgment. What matters is the content of the order – whether it establishes a model corresponding to shared custody in practice.

Can I apply for a split benefit without a court order? No. The Act requires a document confirming the shared custody arrangement. The fact that the parents are in practice sharing care on an alternating basis without a court order or settlement is not sufficient.

What if the authority refuses to split the benefit? An appeal to the supervisory authority is available, followed – if the decision is upheld – by a complaint to the administrative court. The NSA’s case law supports parents who are genuinely exercising shared custody.

I am a foreign national living in Poland – do these rules apply to me? Yes. The child benefit under the Act of 11 February 2016 is a Polish state benefit and the rules governing it apply within Polish territory regardless of the parents’ nationality, subject to the applicable EU coordination rules on social security benefits. Where one or both parents are nationals of other EU member states or have connections to multiple countries, EU Regulation No 883/2004 on the coordination of social security systems may be relevant to determining which country’s benefit system applies. Legal advice on the specific cross-border situation is recommended.

Does an informal shared custody arrangement count for benefit purposes? No. The Act requires the shared custody arrangement to be established by a court order or a settlement concluded before a court or mediator. A practical arrangement agreed informally between the parents, without any formal document, does not entitle either parent to a split benefit payment.

Read more about how Polish courts establish where a child lives and the conditions of care after divorce → [link to relevant page]

Questions about the child benefit under shared custody in Poland, or want to make sure your court order is drafted correctly? Call: +48 531 335 713 or email: kancelaria@prawnikodrozwodu.pl

This article is for general informational purposes only and does not constitute legal advice. Every family law case is individual and requires analysis of the specific facts and documents involved. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For advice tailored to your situation, please contact our office.

Kancelaria Prawa Rodzinnego (Family Law Office): Adwokat Michalina Koligot, Adwokat Marta Krzyżanowicz, Adwokat Anna Konrady, Radca prawny Joanna Jędrzejewska ul. Mickiewicza 18a/3, 60-834 Poznań | tel. +48 531 335 713 | kancelaria@prawnikodrozwodu.pl | www.prawnikodrozwodu.pl