1. Definition of the legal term “parental responsibility”. The rights and duties of a holder of parental responsibility.
“Parental responsibility” means the rights and duties of parents to their children who are minors. In accordance with Article 97 of the Family Code, both parents have the same rights and responsibilities to their children who are minors, without any distinction being made as to whether the children were born in or out of wedlock or were adopted, and they exercise their parental rights solely in the interests of their children.
Parental protection presupposes the existence of a person who is under 18 and who does not have full legal competence.
As parental protection exists for the interests of the minor, this is above all a question of parental duties rather than of parental rights. These include the following:
the parents’ right and duty to raise the child (Article 101(1) and (2) of the Family Code): the duty to look after the physical health of the child, the duty to educate the child, the duty to monitor the schooling and occupational training of the child;
the right to demand that the child be returned by any person wrongfully holding the child (Article 103(1) of the Family Code), who may be either a stranger or the parent who does not have custody of the child in the event of a divorce or an annulment or in the case of a child born out of wedlock; the right of the parent to demand the child’s return is an inalienable right;
the right to consent to the adoption of the child or to request the annulment of the adoption (see Law No 273/2004 on the legal arrangements for adoption);
the right to have personal links with the child: this is a practical problem in cases where the minor does not reside with one of its parents. “Personal links” with the child may take the following forms: visiting the child at its home, visiting the child at school, or having the child spend a holiday with each of its parents;
the right to monitor the raising, education, schooling and occupational training of the child;
the right to establish where the child will live. In situations where the parents do not live together, they will decide by common agreement with which of them the child will live; if the parents cannot agree on this matter, the court will decide, having first listened to the guardianship authority and to the child itself if it has reached the age of 10, taking the interests of the child into account;
the right and the duty to manage the child’s property (actual administrative acts, conservatory acts, acts of disposal);
the right and the duty to represent the minor in civil documents or to approve such documents for the minor. Until the age of 14, the child is represented by its parents in respect of civil documents as it does not have full legal competence; between 14 and 18, the child, who has limited legal capacity, exercises its rights and perform its obligations on its own, but only with its parents’ prior approval.
2. Parental responsibility over a child
Both parents have parental responsibility, regardless of whether the minor was born in or out of wedlock or was adopted (Article 97 of the Family Code). In accordance with Article 42(1) of the Family Code, once a divorce has been pronounced, the court decides which of the parents will be granted custody of any children who are minors. A divorced parent granted custody of a child will exercise parental rights relating to that child. A divorced parent who is not granted custody of the child retains the right to have personal links with the child and to monitor the raising, education, schooling and occupational training of the child.
In the case of a child born out of wedlock whose parentage has been established with regard to both parents, custody will be decided by the court by means of a judicial decision (Article 65 of the Family Code).
3. Can another person be appointed to exercise parental responsibility?
In accordance with Article 113 of the Family Code, in cases where both parents are deceased, are not known, have been deprived of their parental rights, have had restrictions placed on their parental rights, have disappeared or have been declared deceased, the child will have a guardian appointed.
4. If the parents divorce or split up – the question of parental responsibility determined for the future
In the case of a divorce, the court will either give a judicial decision confirming the agreement between the parties or, in the absence of a common agreement between the parties, will reach an independent verdict.
During the marriage, whenever a disagreement arises between the parents regarding the exercise of parental rights, the guardianship authority will take the decision, after listening to the parents and taking into account the interests of the minor (Article 99 of the Family Code).
5. Agreement on the question of parental responsibility – formalities that must be respected to make the agreement legally binding
When the agreement relates to a child in wedlock, there is no need for any formalities relating to an agreement between the parents as the Family Code itself stipulates in Article 98(1) that measures relating to the person and property of the children are to be taken by the parents by common consent.
In cases where a marriage is terminated by divorce or in cases involving a child born out of wedlock whose parentage has been established with regard to both parents, the court will decide on the agreement reached between the parents.
6. Going to court, what issues can the judge decides upon relating to the child?
(For example, where the child will reside, whether the parents will have joint custody or if one parent will have sole custody, the parents’ visiting/access rights, the obligation to pay for the child’s upkeep, the choice of the child’s school, the name of the child, etc.)
The judge may decide on the following:
the custody of a minor (in the case of divorce or a child born out of wedlock);
the contribution of each parent to the costs of raising, educating, schooling and providing for occupational training for the minor;
the granting of visiting rights to the parent who was not granted custody of the minor;
disagreements over the extent of the obligation relating to the minor’s upkeep, over the means of meeting this obligation or over the contribution of each parent to the upkeep of the child in cases where the parents are not divorced (Article 107(3) of the Family Code).
7. If the court decides that one parent shall have sole custody of the child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?
(for example, to move together with the child to a different address in the same country, to move with the child to a different country, to decide which school the child will attend, etc.)
Sole custody is granted by the court either together with the divorce decision (for a child born in wedlock) or following the settlement of an application relating to the custody of the minor (for a child born out of wedlock where parentage is established with regard to both parents).
The parent granted custody of the child exercises his/her parental rights as regards the child and the child’s property and fulfils his/her parental duties.
The parent to whom custody is not granted is not responsible for guarding and supervising the child, retaining instead only the right to monitor the raising, education, schooling and occupational training of the child. That parent has the right to personal links with the child but does not have the right to determine where the child will live or to demand that the child be returned to him/her, under the conditions set out in Article 103 of the Family Code, by a person wrongfully holding the child.
8. If the court decides that the parents shall have joint custody of a child, what does this mean in practice?
During the marriage, the parents exercise their parental rights and duties equally under the law.
The court intervenes only to grant sole custody of a child to one of its parents at the time of a divorce decision (for a minor born in wedlock) or together with the settlement of an application relating to the custody of the minor (for a child born out of wedlock).
9. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?
During a marriage, disagreements between parents regarding the exercise of their parental rights are resolved by the guardianship authority, the executive and implementing bodies of the village, town or municipal authorities or of the district authorities in the case of the municipality of Bucharest. In certain situations laid down by law, any disagreements between parents regarding the measures to be taken in connection with the child are resolved by the court in accordance with ordinary law. Such situations include disagreements regarding the extent of the maintenance obligation, the amount of maintenance payments, custody, visiting rights and where the child will live.
10. Procedure applied in these cases. Emergency procedure available
The ordinary law procedure is applied (as a rule).
Exception: At any time during the divorce procedure, the court may, via a court order, take temporary measures regarding the custody of minors, maintenance obligations, child support allowance and the use of a residence (Article 613 of the Code of Civil Procedure).
11. The appeal against a decision on parental responsibility
The decisions of the guardianship authority can be appealed against before the authority that is its hierarchical superior. A court decision is subject to the channels of appeal laid down in the Code of Civil Procedure (appeal at first instance, appeal to a higher court). If the decision concerning parental responsibility was the main subject of the case, the deadline for appeals at first instance/appeals to a higher court is 15 days from the communication of the decision; if the decision concerned an ancillary aspect of a case, such as in the context of a divorce, the deadline for appeals is 30 days from the communication of the decision.
12. In certain cases, it may be necessary to apply to a court or another authority to have a decision on parental responsibility enforced. Which procedure applies in such cases?
If the court decision is not enforced in good faith, it is possible to solicit the intervention of the enforcement officer in accordance with the procedure laid down in the Code of Civil Procedure, Section V (Article 371 et seq).
13. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognized and enforced in Romania? Which procedure applies in these cases?
For the recognition and enforcement of a decision on parental responsibility, the provisions of Regulation (EC) No 2201/2003 (Brussels II Regulation) may be applied.
The application should be sent to the court from the defendant’s domicile or from the his/her residence in Romania. If the defendant has neither a known domicile nor a known place of residence, it should be sent to the court from the domicile/place of residence of the plaintiff.
14. To which court in Romania should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?
In order to oppose the recognition of a decision, the interested party should apply to the court where the application for recognition is pending. The ordinary law provisions of the Code of Civil Procedure will apply.
15. Which law applies in a proceeding on parental responsibility when the child or the parties do not live in Romania or are of different nationality?
(Explain the rules on the choice of applicable law for each Member State)
In order to determine the law applicable to international private‑law relations, recourse should be had to the provisions of Law No 105/1992 on the regulation of international private‑law relations. Relations between the parents and the child, including the parents’ obligations to maintain and educate the child and manage its property are subject to ordinary national law but, in cases involving citizens of another country, they are subject to the law of their common domicile.
Ordinary national law or the law of their common domicile will continue to govern relations between the parents and the child in the event that one of them changes their citizenship or domicile.
In the absence of common citizenship or common domicile, the relations between the parents and the child are subject to the law of the territory in which they have or have had a common place of residence or with which they both maintain the closest links.
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