Many parents now raise their children alone, within a single-parent family. This is very often caused by a divorce following which the child will live with only one parent.
The establishment of a restrictive visiting schedule for the parent that does not have physical custody of the child affects their rights, as well as those of the child especially the failure to have a close child-parent relationship. According to the provisions of art. 401 from the Romanian Civil Code, parents who are separated from their children have the right to a close relationship with them. Such right is included in the constitutional principle concerning respecting the family, as well as the principle of special protection of children.
Parent who does not have physical custody can keep a close relationship with his child
The rights and obligations of the parent who does not have physical custody imposes limitations, but they are still entitled to the close relationship child-parent. The provisions of art. 262, paras. 2 Civil Code sets out the legal means by which the parent who does not have physical custody can keep a close relationship with his child. In applying these provisions, the parent with whom the child does not live has the right to have personal ties with the child, the parent’s right is only limited in the best interest of the child.
Only if a poor and disadvantageous situation for the child’s development is found, as well as an improvement of their standard of living and depending on the facts of each case only then can restriction of the visiting schedule can be decided by the courts. It is necessary for the parent who has custody of the child to supply evidence to support a request for the restriction of the visiting rights.
As per the provisions of art. 17, para. 1 from Law no. 272/2004 the child also has the right to a close relationship and an interaction with the parents, relatives, as well as other persons to which the child has become attached. Analysing the best interest of a child related to the parent which does not have physical custody the visiting schedule must be established in such a way as to ensure continuity of the relationship child-parent, without this damaging in any way the child, whose interests must always be protected as a matter of priority.
The jurisprudence of the European Court of Human Rights related to the application of the provisions of art. 8 from the European Convention of Human Rights shows that “from the moment and due to the birth of the child, between the parents and the child there is a constitutive link of a family life that subsequent events can only destroy under exceptional circumstances, (case Barrehab v. The Netherlands) a personal connection that is a fundamental element of family life and proceedings that hinder such relationships represent an interference with the right to family life.’’ (case Johansen v. Romania).
The European Court of Justice has ruled that in implementing the decisions relating to the relationship of parents with their children, the best interest of the child should be considered and if the contact with one of the parents would threaten this interest or prejudice the child’s rights, then the national authorities have the duty to pursue a fair balance between all parties’ interests (case Ignaccolo-Zenide v. Romania).
Moreover, the European Court of Justice has criticized the behaviour of the parent with whom the child resides and who has opposed a connection with the other parent and the child. It was considered that for the provisions of art. 8 from the Convention to comply with the state has the obligation to take appropriate and sufficient measures. (case Maire v. Portugal).
These decisions have been incorporated in the family law, as per the provisions of art. 20 from the Romanian Constitution concerning international treaties related to human rights. When the plaintiff from such case did not bring substantial evidence to show that the best interest of the child is violated the court should rule in favour of a close relationship between the child and the other parent.
Even if the child is under the care of the mother, the right of the father to have a natural, relationship with the child outside the mother’s home dis not extinguished especially that the child must know that it is not abandoned by the other parent and thereby supporting him with his future development. Restricting the right to the visiting schedule would damage the creation of a close relationship between the child and the parent with whom he does not live.
Parents have a moral obligation to look after the needs of the child
Parents have a moral obligation to look after the needs of the child and the visiting rights established by a court of law can and should only set the limits on the rights to be exercised, the parties being able, by a common understanding, to adapt these limits to the needs and wishes of the child. (Decision no. 133/2014, Târgu-Mureș Court of Appeal)
Growing up in a single-parent family can have both positive and negative psychological effects on both the parent and the child. It is likely that children may feel happy or relieved when their parents split up, for example, and the house is no longer dominated by fighting, but there are also bound to be feelings of longing for a “normal” two-parent family life.
Ana-Maria Alexandru
Senior Associate
Hammond Partnership
