The alternative residence of minors with separated parents

• Author: Diana Flavia Barbur
• Position: lawy er at the law firm 'Budusan and Associates
• Pages: 140-149

The alternative residence of minors with s eparated parents

Diana Flavia BARB UR

1

Abstrac t

The present art icle proposes to a nalyze the mod ality in which the a lternativ e

residen ce is esta blished w ithin t he legisl ation o f severa l states, a s well as the mo dality in

which the courts a pply the no tion of alterna tive residence . In addit ion to thi s, we took into

consid eration the views expresse d by psycholo gists regardin g this matter. In the la tter part

of the article we an alyzed the regul ations regard ing the resi dence of minors whose paren ts

are separa ted in domestic law and we submit ted our conclusi ons regard ing the adva ntages

and the d isadvanta ges of an altern ative residence . In order to obta in the necessary

informatio n, we stud ied the l egislatio n from differen t countries, the prin ciples of the

Europea n Co mmission on Family Law, art icles o n th is subject and case law , as well as

studie s conduc ted in several stat es. We were th erefore a ble to observe that in some state s,

the al ternative residenc e is explicitly provisio ned by law, whi le in other sta tes, even thoug h

the no tion is not expli citly provisi oned, the cou rts manag ed to find ways in which , through

the judgments rendered, to esta blish i t by wa y of fact. The study is relevant to our legal

system as d omestic legisla tion does no t specifies altern ative residenc e, but n evertheless, in

practi ce, such an arrang ement could a nswer best the supe rior interest of the ch ild.

Keywords: altern ative residenc e, altern ative home, equ al share of paren tal

obli gations, equ al time spent wi th both pa rents, shared paren tal responsib ility

JEL Cla ssification: K36

1. Introduction

Modern legislations, during the elaboration of which jurists, sociologists

and psychologists took part, try to assure the most efficient protection to the

interests of children and a large scale application of the New-York 1989

2

International Convention onthe Rights of the Child, regarding children rights in

relation to both parents.

Thereby, the above mentioned legislations introduced and made possible

the use of the notion of joint custody (also referred to as shared parental

responsibility), viewed as an ensemble of rights and obligations referring to the

legal representation of a minor, care, education and protection, medical treatment

and property administration. The rule adopted is that these rights and obligations to

be exercised in common by both parents – regardless if the parents are married or

not – and only by exception by a sole parent.

1

Diana Flavia Barbur - lawyer at the law firm „Budusan and Associates”,flavia.barbur@budusan.com

2

Law no. 18 from t he 27th of Sept ember 1990 ratifying the Convention on Childs Rights, p ublished in

the Romanian Official Bulletin no. 109 from the 28th of September 1990 and republished in the

Romanian Official Bulletin no.314 from the 13th of June 2001.