Parental Authority Versus Common Custody

• Author: Anca Magda Voiculescu
• Pages: 39-49

LESIJ NO. XXV, VOL. 1/2018

PARENTAL AUTHORITY VERSUS COMMON CUSTODY

Anca Magda VOICULESCU

Abstract

The notion of par ental author ity introduced to Romanian legislation by the New Romanian

Civil Code is totally distinct from the notion of custody specific to other domestic legislations b oth in

theory, as in pra ctical consequences implied.

The purpose of the article is to make a compara tive presentation of the two different notions

mentioned above, as they a re (still) constantly confused, even though a significant period of time has

elapsed since the New Romanian Civil Code entered into force. Confusion comes mainly from the fact

that Romanian Civil Code was inspired from Quebec Civil Code, where the legislation formally refers

to the notion of pa rental authority, but in substance this notion pr esents nevertheless the

cahar acteristics of the concept of custody.

Therefore, the objectives of the present study are to identify the content and forms regula ted

in legisla tion for each of the notions, by studying legal provisions r elevant for parental authority in

Romanian legislation, respectively custody in national legisla tions of other states. As a result, the main

theoretical r esemblances and differences between the two concepts will be decelated.

Further more, the study will identify the pr actical consequences gener ated by their common

points (important decisions are to be taken by agr eement of both pa rents, whereas routine decisions

can be made individually) and main differences (domicile of the child/alterna te domicile and r ights of

access).

Keywords: par ental authority, custody, domicile of the child, rights of access, best interests of

the child.

1. Introduction

The present study aims to make a

comparative presentation of t wo different

notions – parental authority and custody – by

identifying from a theoretical point of view

their content and forms prescribed in

legislation, but also the practical

consequences generated by their differences.

The subject has great importance, as

the two notions are still confused by

 PhD, Judge at Bucharest Tribunal, trainer in family law at Romanian National Institute of Magistracy, Romanian

designated judge in International Network of Hague Judges for 1980 Hague Convention on the Civil Aspects of

International Child Abduction (e-mail: ancamagda.voiculescu@gmail.com).

1 Law no. 287/2009 concerning Romanian Civil Code, published in the Oficial Journal of Romania no.

511/24.07.2009 and republished per Article 218 from Law no. 711/2011, published in the Oficial Journal of Romania

no. 409/10.06.2011, in force from 01.10.2011.

practitioners of law, although a significant

period has elapsed si nce Romanian Civil

Code1 (which introduced to our domestic

legislation the concept of parental authority)

entered into force.

To reach this aim, the study will

identify legal provisions relevant for

parental authority in Ro manian legislation

and custod y in national legislation of other

states. Furthermore, it wil concentrate on

clarifying the content and forms regulated in

legislation for each of the notions.