Parents who cannot talk cannot share custody

The Court of Appeal (Chief Justice Mark Chetcuti, Mr Justice Robert G. Mangion and Madam Justice Simone Grech) decided Z1 vs Z2 on 15 June 2026 without a hearing, under article 152(5) of Cap. 12. It left in place the first court's award of exclusive care and custody to the mother, because parents who cannot speak to each other civilly cannot share custody.

It changed the access order: two supervised hours twice a week at three named outdoor spots became a stepped regime that follows the father's shift roster and grows into sleepovers within two months.

The facts

The parties never married. Their son was born in 2011 and from the age of two months lived with both parents in the paternal grandparents' house. In June 2018 the mother left with the boy for her own parents' home in Marsascala.

The father sued for joint custody, for the child's ordinary residence to be with him, and for maintenance of €250 a month. The case before the Civil Court (Family Section) ran for seven years, with what the first court called an excessive number of police reports on both sides, a court-appointed psychotherapist following the child, supervised access run by the Directorate for Child Protection, and repeated applications about school, football, hockey and the parish museum.

On 12 February 2026 the first court gave the mother exclusive custody, fixed the child's residence with her, ordered €350 a month covering health, education and extra-curricular costs, and confined the father to two supervised hours on Mondays and Wednesdays at one of three public spots. The father appealed on five grounds.

What the court held

On custody the court agreed with the first judge.

The pleadings themselves showed that the rivalry between the parents was still alive on appeal, and “ġaladarba il-ġenituri lanqas ma huma kapaċi jinsew id-differenzi ta’ bejniethom u għall-ġid ta’ binhom jitkellmu b’mod ċivili ma’ xulxin, il-kura u l-kustodja tal-minuri ma għandhiex tkun konġunta” [since the parents are not even able to set aside their differences and speak civilly to each other for their son's good, care and custody should not be joint].

Where every decision, down to which museum the boy attends, would otherwise return to the Family Court, custody goes to the parent with whom the child lives. The court declined the mother's request to apply article 994(4) of Cap. 12, but said it would disregard every allegation not backed by admissible evidence in the acts.

On access the court parted from the first judge. It accepted that the father had caused serious incidents: pulling the boy out of hockey and football training, scenes at the museum, sending him home without his school bag.

But it gave weight to three things the first court had before it and did not follow: the psychotherapist's evidence that the boy wants to be with both parents; the Directorate's report of 23 October 2025 recommending a phased increase in access; and the father's co-parenting course and voluntary sessions with a psychotherapist who reported that he can now control his emotions. Supervised visits had always gone well.

The court told the father that “huwa mhuwiex qiegħed f’xi tip ta’ kompetizzjoni ma’ omm ibnu bil-għan li jirbaħ lil ibnu” [he is not in some kind of competition with his son's mother to win his son], and told both parents that their conduct was the source of the child's anxiety.

The new order works off the father's roster. On a day shift he collects the boy at 6.30 pm and returns him at 9.00 pm; on a night shift he collects him from school and the mother collects him at 5.30 pm. Supervision drops to one hour per visit.

After two months, on rest days the father collects the boy from school for a sleepover and takes him to school the next morning. Handovers are at the Marsascala playground at the start and the Qormi playground at the end. The father must notify the Directorate for Alternative Care of each visit or access is reviewed.

Both parents must attend an FSWS co-parenting course; neither may have the child in the presence of an intimate partner; the paternal grandparents may see him on access days if he wishes; Aġenzija Appoġġ monitors implementation for a year; and a children's advocate was appointed to explain the judgment to the boy.

On maintenance the court applied articles 7(1), 3B, 19 and 20 of the Civil Code. The mother had produced no evidence of what she spends, but in family cases the burden of proof in article 562 of Cap. 12 is tempered by the child's best interest, and a teenager's needs rise. €350 a month including health, education and extra-curricular costs was not inflated.

When the boy is with his father, the father feeds him and pays for what he needs without asking the mother to refund him. Because both parents had fed the rivalry, the costs of both instances were split half and half.

Why it matters

An access order that keeps a father on a park bench for years is not an end point: the court treats supervision as a bridge and will build the timetable itself from the Directorate's phased recommendations if the first court does not.

A parent who wants access widened should complete a co-parenting course and start therapy before the appeal, because the court counted both. And a party who wins on custody can still lose half the costs if the court finds the litigation was fed from both sides.

Where it sits

The case applies article 149 of the Civil Code, the best-interest clause that frees the Family Court from strict procedure, and the settled rule that joint custody is unworkable where the parents do not communicate.

The first court took that rule from M.K.P. vs M.O.T. (Civil Court, Family Section, 6 July 2022) and the line of M.C. pro et noe vs F.C. (Court of Appeal), S.S. vs D.P. and C.B. vs R.M.

The Court of Appeal cited its own decisions in M.D. v. A.C. (31 October 2014) and J.M. pro et noe v. L.M. (14 December 2018) on article 149; M.R. v. S.J.P.H.P. (24 February 2025) on orders about children never being final; A.B.B. v. I.M. (5 December 2024) on what a child's welfare needs; A.Z. v. W.Z. (11 January 2024) and C.G. v. M.G. (9 January 2024) on a child's wishes not being the last word; J.Z. v. J.H. (Court of Appeal, Inferior, 27 June 1953), M.G. v. A.G. (17 June 2025) and J.C.D.G. v. A.K. (15 July 2025) on the burden of proof; S.A. v. J.A. (22 February 2024) on both parents owing maintenance; J.M. v. D.M. (29 February 2024) and Dr C.W. v. Dr M.S. (16 July 2024) on maintenance not exceeding need; and A.B. pro et noe v. S.F. (12 May 2022) on health and education expenses not being split into ordinary and extraordinary.

Source

Court of Appeal (Civil, Superior), 7/2019/2, 15 June 2026: 7/2019/2.