In 2014 in Romania, 1 marriage out of 5 ended by a divorce. In 2014, 123.000 divorces have been pronounced in France, meaning approximately 1.400 less than in 2013. The European average is 1.9 divorces per 1.000 persons, meaning that French people divorced more and Romanian people divorce less than the European average. Nevertheless, divorce creates big issues for children.
In Romania, the entry into force of the New Civil Code on October 1st, 2011 establishes in Book II, a new orientation in the field of family law, closer to the EU practice. Before 2011, the parental protection was regulated by the Family code which dealt with « rights and duties of parents towards their minor child ». The protection of the child primarily targets the person and subsequently, the goods of the minors. The proposal of the NCC (New Civil Code) was supported since 2004 – it is the result of a national conciliation that allows the integration of solutions applied in others countries such as France or Canada. The NCC confirm the upgrading of Romanian laws towards the community requirements.
Also, in France, since 2002 family law faced some changes: the principle of co-parenting has been established, it is a guarantee for a real sharing of parental responsibility. Divorce procedures are now simplified since 2005, but those changes could allow to a normalization of the divorce and also an increase on number of divorces over the next few years.
I. EUROPEAN LAW REGARDING PARENTAL RESPONSIBILITY.
The European Union provides guidelines about parental responsibility. It means that mothers and fathers are equally legally responsible for their children’s upbringing, education and property if they have any. Also, parents have the rights to legally represent their children in matter of inheritance, tort law, etc.
In case of divorce, the joint exercise of parental authority can have a dual basis: an approved convention controlled by the administrative or judiciary authority, or a general principle recognized by the law.
In all the member-states both a mother and a married father have parental responsibility for their child. So, it means that parents exercise their parental responsibility together, jointly. Unlike married fathers, unmarried fathers are bound by the rules depending on their country of nationality.
- Custody and visiting rights
The rules are deferent and unique depending on the countries because it is the national law that determines who will have custody (single or shared), who will decide on the child’s education, who will administrate the child’s property, etc.
Nevertheless, all EU members recognize that children have the right to a personal relationship and a direct contact with both parents, even if they live in different countries. When the parents get divorced, it is important to determine if the children will live with one parent exclusively or with both parents alternatively. To do this, parents need to find an agreement. In case of parents cannot reach an agreement they will go to court and the court will decide taking into consideration the best interests of the child all aspects related to the child, the custody right, place of residence, amount for the alimony.
- France – when the visiting right is fixed, the judge took into consideration the child’s will to set the conditions of the visiting right (Court of Cassation 2nd, 23th May 1984), however the parent’s visiting rights cannot be suspended only because of the child’s will (Court of Cassation Civ. 1st, 3rd December 2008)
- Diamante and Pelliccioni v. San Marino, 27 September 2011 – this case concerned the procedure for awarding parental authority and custody in respect of a child whose mother was Italian and whose father was a San Marino national. The applicants, the mother and the child, complained in particular about a decision ordering the child to be returned to San Marino to live with her father and to attend school there. The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. In general, the domestic courts had conducted the proceedings with due diligence; the measure in question pursued the legitimate aim of protecting the rights and freedoms of the child and his parents; the child’s best interests and the family’s particular situation had been taken into account; and a change of award had been envisaged if necessary.
- Baumbast, 17 September 2002: the Court supports that a child who start classes (during the time that one of his parents was exercising his right of free movement in the EU) has the right to stay in this member-state to complete his classes even if his parent left.
To sum up, there is no difference of rights between mothers and fathers regarding the right of parental responsibility. The only country where the European rules dealing with parental responsibility do not apply is Denmark regarding the recognition and execution of the decisions given by the other member-states.
- What is the ‘best interest of the child’?
Art. 3-1 Convention on Children Rights: « In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.» There is no specific definition about the notion of interest of the child but it means to evaluate and balance all the elements necessary to make a decision in a specific situation for a specific individual child or group of children.
Directive 2011/36/UE states on the article 16.2: « Member-states take the necessary measures to find a lasting solution, based on an individual evaluation of the best interest of the child». Similar provisions are contained in Romanian Law no. 272/2004 regarding child protection.
- Maintenance, alimony: support for family members in case of separation:
Rules regarding maintenance and alimony are different in each countries whether for the allowance or for the amount of money. However, EU rules do apply if it is needed to provide or receive maintenance to or from someone in another EU country.
- Portugal: If the maintenance creditor is in another Member State and wishes to request the application of one of the proceedings laid down in the Regulation, they should file the application with the central authority appointed by the Member State where they are based. This central authority, in turn, forwards the request to the Portuguese central authority who passes it on to the competent national court.
- Belgium : Claimants resident in a country other than Belgium must contact the Central Authority for their country with responsibility for implementing the above Conventions or the Regulation. They may not contact a Belgian body or authority direct.
The request for alimony or child support can be filed mainly with the courts :
- In the country where the ex-partner or parent lives
- In the country where the person with a claim to maintenance lives
- Responsible for cases involving the status (a divorce for example) or parental responsibility – if the matter concerning maintenance is related to such cases.
It is possible to choose jointly the court in front of which the action should be examine but only in specific conditions.
- In case of concubine breakup:
The NCC recognizes the same protection for children born in consensual partnerships as for those out of marriages. However, when concubine partners break-up there are no EU specific rules for child custody, such depending on the national legislation of the countries, whether for patrimonial effects or for the child custody or alimony.
Although European legislation tried to spread the possibility for a common parental responsibility of the child, it seems difficult to apply it in every EU member-states. But, it remains that the parent who does not have the child custody keeps his visiting right, within the limits established by the parties of the court.
II. FRANCE AND ROMANIA : DIFFERENCES AND SIMILARITIES
- Romanian law on children before NCC :
The mindset of 1954 was based on « the state protects the mother and the child ». From 1990 until 2011, numerous claims were made by fathers to Constitutional Court but despite the legal mainstay, the provision was never cancelled. It means that during this period, fathers were usually not able to keep their child in full custody, unless exceptional cases.
- Romanian law regarding children since 2011 :
The 1954 Family Code was replaced by the New Civil Code of October 2011 and since then, there is one main change regarding children: the default rule is joint custody because a ‘presumption’ of joint legal custody is now applied.
The child support should be paid by the parent who does not have the child in custody. According to the Civil Code, the parent who does not have the custody of the minor child has the legal obligation to support the minor child after divorce, by paying a periodic amount – either money or other forms, representing his contribution to the child’s maintenance, education, sustenance to assure the child’s professional training etc.
Other benefits of the new legislation include the setting clearer criteria for deciding on the ‘residence’ of the child:
- The willingness of each parent to involve the other parent in the decisions related with the child
- The willingness of each parent to maintain a personal relationship with one another
- To access the housing situation (e.g. which parent owns a house, how suitable is the house)
- To take into consideration the distance between the houses of each parent and the school
Nevertheless, we have to keep in mind that for the moment the judges still think that « the child must live with the mother ». This change in mindset is probably going to take a few years to be removed, but we can see that Romania has moved a long way.
- What ‘joint custody’ actually means?
In divorce action, the court can decide (often upon agreement of the parents) that the parents will share custody of a child. There are two aspects of the custody:
- Physical: Joint physical custody (instead of one parent having custody with the other having visitation, does not mean exact division of time with each parent, but can be based on reasonable time with each parent either specifically spelled out (certain days, weeks, holidays, alternative periods) or based on stated guidelines and shared payment of costs of raising the child.
- Legal: Joint legal custody means that both parents can make decisions for the child, including medical treatment or education, but they should consult the other (whenever it is possible).
Also, parents often come to counseling when they have decided to separate or divorce. For instance, if parents cannot agree on all of their child custody issues, before they can meet with a judge they will be required to get help in working out their parenting plan. Child custody recommending counseling is a form of conflict resolution during which parents meet with a neutral third person, the child custody recommending counselor, and attempt to resolve their custody and visitation disputes about their children.
- Children born under parents cohabitation:
Children born to cohabiting couples are not subject to the same legal parental provisions as children conceived or born during marriage. But once the father of the child is established (i.e., after the father recognizes the child), the child has the same legal situation as the children of a married couple. Child benefits are granted to all children, regardless of their legal situation.
The article 505 of the New Romanian Civil code provides that:
- When a child is born out of marriage and whose filiation was simultaneously or successively established by both parents, the parental authority will be jointly exercised if they live together
- When a child is born out of marriage and whose filiation was simultaneously or successively established by both parents, if they don’t live together the parental authority will be decided by the Court (joint custody or not)
- Alimony required for the child :
In Romania, there is a legal obligation for the parent who does not have child custody to pay for the child’s support. It means that it is a necessity to contribute to the education, the maintenance of the child in general. But sometimes the parent who does not have the custody is not able to pay for anything because of lack of money. In this case, it is possible for the parents to reach an agreement, meaning the defaulting parent can be allowed to contribute in nature to the child’s support. For example, he can provide services, spend time with the child, buy some clothes, pay for the children’s sports, etc. By doing this, it will be considerate that the parent pay for the maintenance in a certain way regarding his incomes.
- France and parental responsibility
Parental responsibility in France can be defined as the rights and duties that parents have regarding to their minor child, guided by the superior interest of the child and introduced by the International Convention on the Right of Child in 1989.
Unlike Romania, before 1970, the French Civil code established a ‘paternal authority’ as the father had the exclusive authority on the children, because the mother was considered as a ‘minor’ and could not make decisions regarding herself and the children. The wife was subordinate to her husband who was the head of the family.
Since then, the women have been emancipated by their husband and the equality between men and women regarding the parental authority has been progressively established. Now, parental authority puts mothers and fathers equals regarding the education of their child. The 2002 reform for establishing the principle of co-parenting is a guarantee on share in parental responsibility and also it allow to protect and preserve the bond between children and parents: ‘Each father and mother have to maintain relationship with his child and respect the relationship that the other parent have with his child.’
- Divorce and parental authority :
In France, the exercise of common parental responsibility and authority is an obligation related to the divorce. It means that even if the spouses are no longer married, the parental couple need to survive in order to educate and provide benefits to their child.
- In case of cohabitation breakup :
There is no change, even if the parents are not married, if the child had two parents, they have to provide education, benefits as if they were married. Because in the French legislation, the situation of the children is not attached to the situation of the parents (if they are married or not).
- Alimony and child custody :
Since 2002, the child can live alternatively with both parents. It means that one week out of two the child will lives with his mother and the other week he will lives with his father. If the child is alternately living with both parents, there is no need to alimony. But if the child is not living alternately with both parents, the parent, who has no child custody has to contribute to the child maintenance by giving alimony to the other parent. The alimony is fixed either by agreement of both parents or by the court taking into account the income of both parents. The amount of alimony is fixed by the judge but it can change, for example if the mother or the father have to pay a certain amount of money for the alimony but is fired by his employer, he can adapt the amount of money that shall be given. Also, it exists a legal scale to facilitate establishment of the amount of the alimony.
Concerning the child’s custody, it is possible to change the establishment of the visiting rights and the alimony. Of course the children will grow up and their needs will increased (school, university, etc.)
III. CONCLUSIONS AND PERSONAL OPINION
I chose to work on this topic first of all because it is something personal, and also that is useful to know. Divorce and separation of free union are related to the parental responsibility and reach many people because of the play down of those situations. As it can be seen, the legislation and the directives are still incomplete and depend more or less on the sovereignty of the member-states of the European Union. Some basic principles are built, but they are not efficient in all the countries or even if these principles are agreed it takes many times to change the mindset of people.
Nevertheless, the impact of those situations is directly related to children. They are not responsible for the situation, if parents decided to get divorced they have not their say. But as far as I know, this situation will change their lives: because of living just with one parent, because of the possible dispute between the parents, because of maybe cutting back their spending habits, etc. Most of the effects linked to the breakup or the divorce are also linked with the child. We do not have to ignore the interests of the child. During the childhood, the adolescence, children are shaping their personality, and a break up or a divorce between the parents seems to affect them. That is why, joint custody is a necessity as far as possible. If sharing custody is too complicated for the child, parents need to agree to drop out and accept to see their children less often for his interest because living a life between two places can also be difficult for them, sometimes more than seeing less one parent.
 Sometimes in case of abuse, the joint custody can be questioned : the judges can take measures like reduce a parent’s visitation hours, prevent overnight visits, require supervised visitation for example.
2nd year student
Law Faculty, Catholic University of Lille,