Brief considerations as to the joint exercise of parental authority after divorce

Author:Elisabeta Slabu
Position:Senior Lecturer, Ph.D. - Faculty of Legal, Social and Political Sciences, 'Dunarea de Jos' University of Galati
Pages:202-210
SUMMARY

The purpose of this study is to determine whether changes in the legislation on the exercise of parental authority brought positive changes in the lives of children whose parents have divorced. The methods used, i.e. comparison and observation, support the scientific approach in order to draw conclusions on the achievement of the ultimate aim of both legislative changes and study, respectively ensuring the best interests of the child. The rule of joint exercise of parental authority for children after the parents' divorce was introduced in the Romanian legal system at the time of the entry into force of the new Civil Code, respectively in 2011, taking also into account the fact that this rule applies in many other states of the European Union. The best interests of the minor require maintaining the child in a balanced family environment, in the presence of both parents, since the risk of breaking the child's spiritual balance is very high along with his or her giving to one of the two parents. Unfortunately, in most cases where the divorce or separation of parents occurs, the access of the non-resident parent to his/her own child becomes difficult to achieve, in which case it is useful to organize a program of personal relations meant to ensure the continuity of the non-resident parent's presence in the child's life. At this moment it is required the experience of the judge, who, taking into account all the aspects specific to each case, to find the best solution for ensuring the respect of the best interests of the child. The exercise of child joint custody may be beneficial for the child, sometimes not, depending on the attitude of each parent, and the judge will have to choose the best solution for each child, each case being different from the other case. And the parents should be advised and trained by specialized personnel so as to take upon themselves learnedly the new situations that they will face during the joint exercise of parental authority, in order to achieve the best interest of the child.

 
CONTENT
202 ELISABETA SLABU
BRIEF CONSIDERATIONS AS TO THE JOINT EXERCISE
OF PARENTAL AUTHORITY AFTER DIVORCE*
Elisabeta SLABU **
Abstract: The purpose of this study is to determine whether changes in the legislation on the
exercise of parental authority brought positive changes in the lives of children whose parents have
divorced. The methods used, i.e. comparison and observation, support the scientific approach in order
to draw conclusions on the achievement of the ultimate aim of both legislative changes and study,
respectively ensuring the best interests of the child. The rule of joint exercise of parental authority for
children after the parents' divorce was introduced in the Romanian legal system at the time of the
entry into force of the new Civil Code, respectively in 2011, taking also into account the fact that this
rule applies in many other states of the European Union. The best interests of the minor require
maintaining the child in a balanced family environment, in the presence of both parents, since the
risk of breaking the child's spiritual balance is very high along with his or her giving to one of the
two parents. Unfortunately, in most cases where the divorce or separation of parents occurs, the
access of the non-resident parent to his/her own child becomes difficult to achieve, in which case it is
useful to organize a program of personal relations meant to ensure the continuity of the non-resident
parent's presence in the child's life. At this moment it is required the experience of the judge, who,
taking into account all the aspects specific to each case, to find the best solution for ensuring the
respect of the best interests of the child. The exercise of child joint custody may be beneficial for the
child, sometimes not, depending on the attitude of each parent, and the judge will have to choose the
best solution for each child, each case being different from the other case. And the parents should be
advised and trained by specialized personnel so as to take upon themselves learnedly the new
situations that they will face during the joint exercise of parental authority, in order to achieve the
best interest of the child.
Key words: Private Law, Civil Law, Civil Code, joint exercise of parental authority, principle
of the best interest of the child, mediation.
The exercise of parental rights in Romania after divorce, during the last 30
years
In December 1989 the protection of the rights of the child in the family was
carried out based on the Family Code, namely on the basis of Law no. 4/19531 (with
* The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, organized by the Faculty of
Law – Transilvania University of Braşov on the 29th-30th of November 2019. All links were last
accessed on 4 November 2019.
** Senior Lecturer, Ph.D. – Faculty of Legal, Social and Political Sciences, "Dunrea de Jos"
University of Galai (slabuelisabeta@yahoo.com).
Law Review special issue, Decembre 2019, pp. 202-210
Brief considerations as to the joint exercise of parental… 203
the amendments and republishing related to the years 1956, 1966, 1970 and 1974).
The Family Code was amended several times after the events of December 1989,
respectively in the years 1990, 1993, 1997, 1999, 2004, 2007, 2010 and 2011. It was
repealed by Law no. 71/2011 for the implementation of Law no. 287/2009
regarding the Civil Code2.
Article 1 of the Family Code provided as follows: "In the Socialist Republic of
Romania, the state protects marriage and family; it supports, through economic
and social measures, the development and consolidation of the family. The state
defends the interests of the mother and the child and shows great concern for the
raising and education of young generation. The family is based on the freely
agreed marriage between the spouses. In the relations between spouses, as well as
in the exercise of rights towards children, man and woman have equal rights. Parental
rights are exercised only in the interests of the children."
In addition, Article 42 in the same Code stipulated that: "The court will decide,
along with the divorce pronouncing, to whom of the parents the minor children will be
given …". According to Article 43 of the Code, “the divorced parent, to whom the
child has been given exercises parental rights. In case the child has been given to
another person or guardianship institution, the court will decide which parent will
exercise the right to administer his/her goods and to represent him/her or to consent to
his/her acts... The divorced parent to whom the child was not given, keeps the right to
have personal connections with him/her, as well as to watch for his/her growth, education
and professional training.
Therefore, based on the Family Code, the child whose parents were divorcing
was given to one of the parents, a parent who exercised parental rights alone.
In 2004, by Law no. 272/2004 regarding the protection and promotion of the
rights of the child3, there are made clarifications regarding the manner of
exercising parental rights. This special law dedicated to the protection of the child's
rights the has been amended several times and subsequently republished, in order
to accommodate the national legal regulations to the current social situation, both
in Romania and in the European Union. We can assume that a process of
convergence of the European to the national regulations took place, as the previous
national legislation could determine situations of parents’ discrimination after
divorce.
Thus, par. 4) from Article 17 of the law establishes the following: “In case of
disagreement between parents as concerns the ways to exercise the right to have
personal relationships with the child, the court will fix a program depending on the age
of the child, his /her needs of care and education, the intensity of the affective relationship
between the child and the parent with whom the child does not live, the latter's behavior, as
well as other relevant aspects in each case…”.
1 Published in The Official Bulletin of Romania, Part I, no. 1 from the 4 January 1954.
2 Published in The Official Journal of Romania, Part I, no. 409 from 10 June 2011.
3 Published in The Official Journal of Romania, Part I, no. 159 from 5 March 2014.
204 ELISABETA SLABU
Within the paras. 3) and 4) of Article 18 of the law it is provided that “The
parent with whom the child lives has the obligation to support the keeping of the personal
relations of the child with the other parent… In order to restore and maintain the
personal relations of the child, the public service of social assistance and, as the
case may be, the general directorates of social assistance and child protection from
each sector of Bucharest have the obligation to provide guidance, given by specialists,
to both the child and his/her parents, upon their request ”. Para. (5) of the same
article stipulates that: “In case one parent interdicts or adversely affects the
personal relations of the child with the other parent, by not observing the program
established by the court or agreed by the parents, the other parent may request the public
service of social assistance, or, as the case may be, to the persons with social assistance
duties in the district of which the child's home is located, to monitor the personal
relationships with the child for up to 6 months. Moreover, para. 7) establishes that: At
the end of the monitoring period, the representative of the public service of social
assistance or, as the case may be, the person with social assistance duties ... may
propose the extension of the monitoring period by maximum 6 months, may recommend the
psychological counseling of one of the parents or of both, as well as some measures to
improve the personal relationship between the child and the parent with whom he/she does
not live.
These legal provisions represent a step forward in the attempt to prevent the
worsening of conflicts between the child's parents, after it has been established the
minor's home to one of them. An early intervention of specialists within the public
service of social assistance can cause a rebalancing of relations between parents
and among parents and children, after divorce. Unfortunately, not all public
services of social assistance in the local communities have available specialized
staff, especially psychologists, and, consequently, rendering this specialized service
is the responsibility of the general directions of social assistance and child
protection, which are already overstrained as they take over the cases throughout
the entire territory of a county.
Moreover, Article 36 of the same law provides that: “(1) Both parents are
responsible for raising their children. (2) The exercise of rights and the fulfilment of
parental obligations must take into account the best interests of the child and
ensure the material and spiritual well-being of the child, particularly by caring
him/her, by maintaining the personal relations with him/her, by ensuring his/her
raising, education and maintenance, as well as through its legal representation and
administration of its heritage. (3) If both parents exercise parental authority, but do not
live together, the important decisions, such as those relating to choosing the type of
education or professional training, complex medical treatments or surgical interventions,
the child's residence or the administration of the assets, shall only be made with the consent
of both parents. (4) In the event that, for any reason, one of the parents does not
express his/her will for taking the decisions provided in par. (3), these will be
taken by the parent with whom the child lives, except when this is contrary to the
Brief considerations as to the joint exercise of parental… 205
best interests of the child. (5) Both parents, regardless of whether or not they
exercise parental authority, have the right to request and receive information about
the child from the school institutions, health units or any other institutions that get
in contact with the child. (6) A parent cannot give up parental authority, but can agree
with the other parent upon the manner to exercise parental authority, according to Article
506 of the Civil Code. (7) There are deemed justified grounds for the court to decide
that the parental authority to be exercised by one parent alcoholism, mental affection,
drug addiction of the other parent, violence against the child or against the other parent,
convictions for the offences of human trafficking, drug trafficking, sex life offences, violence
offenses, as well as any other reason related to the risks for the child, which would
derive from the exercise by that parent of the parental authority. (8) In case of
disagreement between parents regarding the exercise of rights and the fulfilment
of parental obligations, the court, after hearing both parents, decides according to
the best interests of the child”.
The provisions of Law no. 272/2004 are supplemented by other regulations
that refer to the rights of the child, including the provisions included in the
international conventions and treaties to which Romania is a party.
From the national legislation it should be mentioned in particular the Civil
Code4, which incorporated the old Family Code. The Civil Code, as subsequently
amended and supplemented, contains important regulations as concerns the
protection of the child whose parents no longer live together or have divorced.
Thus, according to Article 396 of the Civil Code, “The guardianship court decides,
along with the pronouncement of the divorce, on the relations between the divorced parents
and their minor children, taking into account the best interests of the children, the
conclusions of the psychosocial investigation report, as well as, as the case may be,
the agreement of the parents, who are heard”.
Article 397 of the Civil Code establishes that: “Following the divorce, the
parental authority falls jointly on both parents, unless the court decides otherwise.”
However, “if there are good reasons, given the best interests of the child, the court
decides that the parental authority be exercised only by one of the parents. The other
parent keeps the right to watch over the child's raising and education, as well as
the right to consent to his/her adoption. Exceptionally, the guardianship court
may decide the child's foster care by a relative or other family or person, with their
consent, or in a protection institution. They exercise the rights and duties that fall
on the parents regarding the child. The court decides whether the rights regarding
the child's assets are exercised by the parents jointly or by one of them”.5
In addition, the Civil Code provides that: “In the absence of an agreement
between the parents or if this is contrary to the best interests of the child, the
4 Law no. 287 from 17 July 2009 regarding the Civil Code, republished in the Official Journal of
Romania, Part I, no. 505 from 15 July 2011.
5 Article 398-399 of the Civil Code.
206 ELISABETA SLABU
guardianship court decides, along with the pronouncement of the divorce, the residence of
the minor child to the parent with whom he or she lives constantly. If until the divorce
the child lived with both parents, the court sets the home to one of them, taking
into account his/her best interests. Exceptionally, and only if it is in the best
interests of the child, the court may establish his/her home with grandparents or
other relatives or persons, with their consent, or at a protection institution. They
will exercise the child supervision and carry out all the usual acts concerning
his/her health, education and learning.”6
Article 401 of the Civil Code provides that “the parent or, as the case may be,
the parents separated from their child have the right to have personal relationships
with the child. In case of disagreement between the parents, the guardianship
court decides on the manners of exercising this right. Hearing the child is
mandatory…”7.
The Civil Code also gives us a definition of the parental authority notion, as
follows: “The parental authority is the entirety of rights and duties that concern both the
person and the goods of the child and belong equally to both parents.” The Civil Code also
establishes the rules applicable to exercising the parental authority, as follows:
“The parents exercise parental authority only in the best interests of the child, with
due respect to him/her, and associate the child with all decisions concerning
him/her, taking into account his/her age and degree of matureness. Both parents
are responsible for raising their minor children... Parental authority is exercised
until the child achieves full exercise capacity. ”8.
Article 487 from the same Code also defines the content of parental authority, as
follows: “Parents have the right and duty to raise the child, taking care of his
physical, mental and intellectual health and development, his education, learning
and professional training, according to their own beliefs, and the peculiarities and
needs of the child; they are responsible for giving the child the guidance and
advice necessary for the corresponding exercise of the rights that the law
recognizes to the child”.
Therefore, according to the new regulation, the rule is that parental authority
falls jointly on both parents, following the divorce, and only in well-founded situations,
regarding the best interests of the child, the court decides that parental authority be
exercised only by one of the parents.
6 Article 400 of the Civil Code.
7 According to Article 264 para. 1) of the Civil Code, “in the administrative or judicial procedures
concerning him/her, the hearing of the child who has reached the age of 10 years is mandatory. Nevertheless, a
child who has not reached the age of 10 may be also heard, if the competent authority considers that this is
necessary for the resolution of the case”.
8 Article 483-484 of the Civil Code.
Brief considerations as to the joint exercise of parental… 207
Arguments concerning the convergence at European level of the actions in
relation to the protection of the rights of the children in the middle of litigations
for the exercise of the parental authority
The national regulations mentioned above are part of the entirety of actions
regarding the protection of the child whose parents have divorced, which we
identify at European Union level.
Thus, the Charter of Fundamental Rights of the European Union, in Article 24,
entitled Rights of the Child, stipulates in para. 3 that “Every child has the right to
maintain regular personal relationships and direct contacts with both parents,
except when they are contrary to his/her interest.”.
Also, the Communication from the Commission to the European Parliament,
the Council, the European Economic and Social Committee and the Committee of
the Regions, titled An EU Agenda for the Rights of the Child, shows the following:
“Family disputes can adversely affect the well-being of children. Children who are
separated from one or both parents must have the right to maintain personal
relationships and direct contact with both parents on a regular basis, except for the
cases when this is in conflict with their best interests.9 Civil proceedings, especially
transnational disputes, arising from the dissolution of marriage or legal separation
may lead to the restriction of this right. Particularly during the procedures
targeting to establish parental responsibility, children may get to be "captive" in
long-standing cross-border disputes between former partners.
The EU legislation10 is already facilitating the recognition and enforcement of
decisions regarding parental responsibility. Informing adequately children and parents
concerning the rights conferred on them by the EU and national law is a precondition that
allows them to defend their rights in family disputes. The information should be easily
accessible and provide clear guidance as regards the relevant procedures. The
Commission, in cooperation with the Member States, will draw up and update
records concerning the EU and national legislation with regard to the obligations
of maintenance, mediation and recognition and enforcement of decisions on the
parental responsibility. As regards the abduction of children by parents, the
Commission will pay particular attention to the information provided by the
European Parliament Ombudsman for the international abduction of children by
parents”.11
9 Article 24 (3) of the Charter of Fundamental Rights of the European Union.
10 Regulation (EC) No. 2201/2003 of the Council dated 27 November 2003 on the jurisdiction,
recognition and enforcement of court decisions in matrimonial matters and in matters of parental
responsibility, for repealing Regulation (EC) no. 1347/2000 (CE), OJ L 338, 23.12.2003, p. 1-29.
11 COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE
COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE
OF THE REGIONS, An EU agenda for the rights of the child, COM(2011) 60 final, Brussels, 15.2.2011,
accessible on page https://eur-lex.europa.eu/legal-content/RO/TXT/?qid=1573151593810&uri=
CELEX:52011DC0060.
208 ELISABETA SLABU
Moreover, Regulation (EC) No. 2201/2003 of the Council dated 27 November
2003 on the jurisdiction, recognition and enforcement of court decisions in
matrimonial matters and in matters of parental responsibility, for repealing
Regulation (EC) no. 1347/2000, provides within item 25 of the Preamble the
following: “The central authorities should cooperate both in general and in special
cases, including with a view to encouraging the amicable resolution of family conflicts in
the matter of parental responsibility …”.
Conclusions regarding the procedures of the cases when it cannot be
achieved the joint exercise of parental authority
Many times, the joint exercise of parental authority leads to conflicts between
the child's parents, who, following the divorce, still keep resentments and refuse to
find a way of communication in the child's interest. Thus, it occurs the refusal of a
parent to express consent regarding certain decisions to be made in relation to the
minor: registering to a certain family physician, enrolling in school, performing
medical procedures, changing the child's domicile in another locality or in another
country, etc. The absence of the consent must be substituted by a court ruling,
which often cannot be obtained in due time, so that the child's life not be affected.
Therefore, can it be stated that this current manner of joint exercise of
parental authority is beneficial for the child?
In the event that parents collaborate in the common interest of the child, this
method is very useful. Together, the two parents will always find a solution in the
best interests of their child. When the two parents do not cooperate, the best
interests of the child are forgotten and different conflicts and accusations arise
between the parents, each considering that he/she is right. In most cases, the other
parent brings accusations of abuse and neglect of the child, in order to obtain a
new judge's decision to exercise the parental authority, but this time, an exclusive
one. However, in the fight for custody the child suffers the most, which is most
often influenced by the parent with whom he/she lives, in the sense of refusing
communication with the other parent or the visit to which he/she has the right.
The parent to whom is denied communication with the minor and exercising
the right of visit most often appeals to a judicial executor, who can find the child's
refusal to go to visit the other parent or even the refuse to communicate with that
parent, and subsequently, may request the General Directorate of Social Assistance
and Child Protection (DGASPC) to submit a request to the court to oblige
attending psychological counselling sessions in order to re-establish the relations
between the child and the parent with whom he or she does not live.
The court issues a sentence whereby the parent with whom the child lives is
obliged to go with him/her to the DGASPC headquarters to participate in the
counselling sessions with a view to renew the relationship with the other parent.
Brief considerations as to the joint exercise of parental… 209
Some parents come with the child at counselling sessions, but some do not attend,
motivating their attitude by the fact that the child also refuses these counselling
sessions. The DGASPC notifies the judge of this refusal and it can decide to be paid
of penalties for each day of delaying the execution of the court decision, for a
period of maximum 3 months12. If, within this three-month period, the debtor fails
to fulfil his/her obligation or is of bad faith and hides the minor for non-execution,
the legislator has regulated a severe legislative solution establishing a more drastic
sanction than that of penalties, respectively the debtor is subject to obey the rigors
of the criminal law, as the judicial executor will record this fact and will
immediately notify the Prosecutor's office attached to the execution court in order
to start the criminal prosecution, for committing the offence of failure to comply
with the court decision.
In a decision from 2016, the Constitutional Court of Romania held that the
legislator regulated several gradual measures in intensity, meant to bind the debtor
to execute the obligation stipulated in the enforceable title, through the court. The
enforcement of penalties represents a means of judicial constraint, a pecuniary
sanction, which has the role to create an additional pressure on the debtor of the
obligation, including by accumulating, for three months, the amounts due for the
delay in execution. After this time limit, the legislator provided a much more
serious sanction, namely the obligation of the debtor with the enforcement of a
criminal sanction13.
All these steps sometimes mean years of wasted days for the child and his/her
parents, worsening conflicts between parents and, in time, alienating the child
from the parent with whom he/she does not live. This is why it is particularly
important for all parents who are going through a divorce, and their children, to
benefit, free of charge, from services of psychological counselling and mediation of
relations between adults, in order to prevent the occurrence of a crisis situation.
Thus, de lege ferenda, it should be added to the Civil Code the obligation of
parents who have filed for divorce and have minor children, to participate in at least 4
sessions of psychological counselling or for mediating relations between parents, in order
to be informed about the consequences of the parents' divorce on the evolution of
the child and to try to identify the best ways to maintain the relations with their
own child, regardless of where the child's domicile will be established.
As a matter of fact, Recommendation no. (98) 01 of the Committee of Ministers of the
Council of Europe concerning family mediation, shows that this can "improve
communication between family members, reduce the proportions of the conflict between the
parties in dispute, lead to an amiable resolution, ensure the continuity of the relations
12 See article 903-913 of the Code of Civil Procedure.
13 Decision no. 299 of May 12, 2016 of the Constitutional Court of Romania, paragraph 19,
published in the Official Journal of Romania, Part I, no. 552 from 21 July 2016.
210 ELISABETA SLABU
between the parents and children, contribute to decreasing the economic and social costs
incurred by separation or divorce, both for the parties and for the states.”14
Therefore, the joint exercise of parental authority is a step forward in reaching
the convergence of the Romanian legislative provisions with the European
regulations as regards the protection of the child's rights, and in particular the right
of the child to maintain the relation with both parents.
14 Adopted by the Committee of Ministers on 21 January 1998 at the 616th meeting of the
Ministers' Deputies, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTM
Content?documentId=09000016804ecb6e.