The alternative residence of minors with separated parents

Author:Diana Flavia Barbur
Position:lawy er at the law firm 'Budusan and Associates

The present article proposes to analyze the modality in which the alternative residence is established within the legislation of several states, as well as the modality in which the courts apply the notion of alternative residence. In addition to this, we took into consideration the views expressed by psychologists regarding this matter. In the latter part of the article we analyzed the... (see full summary)

The alternative residence of minors with s eparated parents
Diana Flavia BARB UR
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
International Convention on the 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.
Diana Flavia Barbur - lawyer at the law firm „Budusan and Associates”,
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.

To continue reading