Parental Authority Versus Common Custody

AuthorAnca Magda Voiculescu
LESIJ NO. XXV, VOL. 1/2018
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
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:
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.

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