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Barnelova §§ 42 + 43 + 43a — Samværsrett + supervised access (verbatim, official EN translation)

Jurisdiction: Norway · Citation: Lov om barn og foreldre (barnelova) 8 April 1981 No. 7, §§ 42, 43, 43 a · Authoritative source: lovdata.no — official English translation

The operational contact framework of Norwegian family law. § 42 establishes the child's right of access to both parents (positively framed as a child's right, not a parental entitlement); § 43 sets the scope of access including the statutory "ordinary right of access" benchmark; § 43 a empowers the court to order supervised access in welfare-protective circumstances. Together these provisions are the principal statutory hooks on which Norwegian foreldrefiendtlighet (parental hostility / alienation) jurisprudence is built.

Verbatim text (official English translation, current consolidated)

§ 42 — The child's right of access to the parents

The child has right of access to both parents even if they live apart. The parents have mutual responsibility for implementing the right of access.

The child is entitled to the care and consideration of the parent who is with the child. The parent who is with the child may take decisions concerning the care of the child during access.

§ 43 — The extent of the right of access etc.

The parent without whom the child lives, has a right of access with the child unless otherwise agreed or determined. The extent of the right of access shall be determined more closely in accordance with what the parents agree upon or what the court determines. The scope of access shall be set in light of the best interests of the child. Importance shall be attached, among other factors, to ensuring the best possible overall contact between the child and his or her parents, the age of the child, the extent to which the child is locally attached to his or her own neighbourhood, the distance between the parents' homes, and the other interests of the child.

If an "ordinary right of access" is agreed or determined, this means access of one afternoon a week with an overnight stay, every other weekend, a total of three weeks of the summer holiday and alternate autumn, Christmas, winter and Easter holidays.

Conditions in respect of the implementation of the right of access may be set in an agreement or judgment. The parent with whom the child lives shall give the other parent reasonable advance notice if access cannot take place as agreed or determined, or where the time the right of access is to be exercised must be changed.

If the parent who has custody, or with whom the child lives, prevents implementation of access, the other parent may request that the question of parental responsibility, or who the child shall live with, be reconsidered, cf. § 64.

§ 43 a — Supervised access

The court may, in special cases where this is necessary in order to safeguard the best interests of the child, order that there shall be access subject to the conditions of supervision by a publicly appointed person. The court may order protected supervision in accordance with subsection three or supported supervision in accordance with subsection four. Conditions may be set as to the duration of the order and the duration of access, but in no case shall this be longer than 16 hours per year.

Before such an order is made, the court shall obtain an assessment from the child welfare service, or from the Norwegian Directorate for Children, Youth and Family Affairs, as to whether such an arrangement may be implemented in practice, and as to which arrangement is best suited to the child's needs.

The court may impose protected supervision where this is required by particular circumstances of the case, including conditions that involve a risk of abuse of the child during access. The municipal child welfare services shall appoint the persons who are to perform supervision, and shall follow up cases involving protected supervision orders.

The court may impose supported supervision where measures are required to facilitate access in cases where the child's needs are decisive. The Norwegian Directorate for Children, Youth and Family Affairs shall appoint persons to act as supervisor in cases involving supported supervision.

Why this matters for PA

  • § 42 — child's right framing, not parent's right. Unusually among European frameworks, Norway places the contact right in the child's name (the child has right of access to both parents) rather than the parent's. The legislative effect is that contact-refusal cannot be ratified by the resident parent's preference: the right runs to the child. This is doctrinally important in alienating-conduct cases — a court will not accept "the child does not wish to see the other parent" at face value where the resident parent has shaped that expressed view.
  • § 42 — mutual responsibility clause. The parents have mutual responsibility for implementing the right of access. This is the Norwegian statutory anchor for cooperation duty — analogous to German § 1684 (2) BGB and Austrian § 159 ABGB. Where a resident parent fails to facilitate access (passive alienation) OR engages in active alienating conduct, the breach is established under § 42's mutual-responsibility clause.
  • § 43 final paragraph — the consequence clause. If the parent who has custody, or with whom the child lives, prevents implementation of access, the other parent may request that the question of parental responsibility, or who the child shall live with, be reconsidered, cf. § 64. This is the Norwegian change-of-residence remedy — the statutory escalation in PA cases. Contact-frustration is not merely sanctionable; it is grounds for re-litigating who the child lives with. The Høyesterett (Supreme Court) has applied this in sustained-alienation cases (HR-2007-1957-A and following line).
  • § 43 a — supervised access cap at 16 hours/year. The 16-hour annual cap is restrictive — supervised access in Norway is treated as a transitional measure, not a long-term arrangement. Where supervised access is the only safe modality, the welfare assessment must address whether the protection is needed, not whether the child wants contact (the standard analysis flows from § 42 child's-right framing).
  • Distinguish protected supervision vs supported supervision. Protected supervision (§ 43 a Abs 3) addresses risk of abuse — child welfare services run; supported supervision (§ 43 a Abs 4) is facilitative for difficult-but-not-abusive contact, run by the Directorate for Children, Youth and Family Affairs. The doctrinal distinction matters: alienating-conduct cases typically engage supported not protected supervision — the protective framing is reserved for actual abuse risk, while alienating patterns are addressed at the § 43 final-paragraph (re-litigation) level.

Procedural application

  • The competent first-instance court is the tingrett (district court); appeal lies to the lagmannsrett (court of appeal) and ultimately the Høyesterett (Supreme Court).
  • Mediation (mekling) is mandatory at the familievernkontor (family counselling office) before court proceedings can begin under Lov om ekteskap § 26 and Barnelova § 51 — exception only where DV is established.
  • The child's voice is heard from age 7 (mandatory) and given increasing weight; from age 12 the child's view is very heavy (tillegges stor vekt); but the court is not bound by the child's expressed wish — it remains a welfare assessment.
  • The barnevernet (child welfare service) provides assessment under § 43 a where supervised access is contemplated.

Use in alienating-conduct cases

The Høyesterett has applied the §§ 42-43 framework to sustained alienating-conduct patterns. Principal authorities:

  • HR-2007-1957-A — held that the § 43 final-paragraph re-litigation route is available where a resident parent's conduct has frustrated contact over a sustained period
  • HR-2010-2092-A — applied the § 42 mutual-responsibility clause to require facilitative conduct from the resident parent, not just non-interference
  • HR-2019-1986-A — reaffirmed the child's-right framing of § 42 in a Hague-1980 abduction-return context

These authorities establish that, while Norway has not codified "parental alienation" as a statutory label, the §§ 42-43 framework provides functionally equivalent operational remedies for the alienating-conduct pattern.

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Sources & authoritative references

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