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The rules governing parental responsibility, whatever the parents’ situation, are included in the Civil Code under the same heading as parental authority. This is defined as a set of rights and duties attributed to the father and mother in the interest of the child while the child is under age.
The parents have a duty to protect the child in terms of security, health and morality and to provide for their education and to allow the child to develop with due consideration for their personality. Each parent must contribute towards the child’s maintenance and education in proportion to their financial means and those of the other parent.
Parental authority is exercised jointly by both parents, whether or not they are married and whether they live together or separately insofar as the child’s relationship with each parent has been established before the child’s first birthday.
In other cases, the parent with regard to whom the child’s relationship has been established exercises parental authority alone. However, parental authority can be exercised jointly by a joint declaration of the parents before the chief clerk of the court of first instance or by decision of the judge in family matters.
The judge may exceptionally, where required by the interest of the child, decide to put the child in the care of a third party, who should preferably be related.
If the child is in danger, an educational assistance measure can be ordered. If the child must, to the extent possible, be maintained within their family circle, they can be entrusted if necessary to the care of the other parent, to a member of the family, to a trustworthy third party or to a specialised institution.
If either of the parents dies or is deprived of the exercise of parental authority, in principle the other parent exercises this authority alone. If there is no father or mother to exercise parental authority, a guardian should be appointed.
Separation of the parents has no effect on the rules governing the awarding of parental authority. Parental authority continues to be exercised jointly except if in the interest of the child the exercise of this authority must be entrusted to only one of the parents.
The arrangements for the exercise of parental authority, the child’s residence (alternately in the domicile of each of the parents or in the domicile of one of them) and the amount and form of the contribution towards the child’s maintenance and education must be agreed between the parents or, failing this, imposed by a court decision.
In the event of legal separation of the spouses or cohabitors, the judge need not intervene. The parents can agree on the consequences of their separation on their children through a simple agreement or submit this agreement to the court for approval.
In the event of a divorce, the parents can also submit an agreement to the judge for approval.
In either case, the judge gives his approval to this agreement unless he considers that this agreement does not sufficiently protect the child’s interest or that the parents’ consent has not been freely granted.
In the event of a disagreement between the parties, the judge seeks to reconcile the parties. In order to help the parents agree on the exercise of parental authority, he may order a mediation measure, subject to their agreement.
He may also order the parties to see a family mediator to provide them with information on the purpose and procedure of this measure.
The judge in family matters is competent to settle all matters relating to the arrangements for the child’s place of residence, the contribution towards the child’s maintenance and education and in general any and all disputes between the parents concerning the exercise of parental authority (enrolment in a school, religious choices, health, etc.).
He may also take measures to guarantee the maintenance of contact between the child and each of the parents and, in particular, order that it be stamped on the parents’ passport that they cannot take the child out of French territory without the authorisation of both parents.
For illegitimate children, any change in the child’s name is decided by the judge in the event of a disagreement between the parents.
If the judge grants exclusive exercise of parental authority to one of the parents, the other parent has visiting and housing rights, except on serious grounds. Furthermore, the other parent retains the right and duty to supervise the child’s maintenance and education and must be informed of any important choices pertaining to the child’s life, such as schooling, religious choices, a request to change the child’s name, etc.
In addition, if one of the parents moves house and this move changes the arrangements for the exercise of parental authority, this parent must inform the other parent in good time.
The joint exercise of parental authority presupposes that the parents must decide together on decisions relating to their child. However, in order to facilitate their everyday life, the law assumes that when one of the parents carries out a routine action alone within the framework of parental authority this parent is acting with the agreement of the other parent. The definition of a routine action is determined on the basis of case law
Examples of actions that have been considered as such include minor surgery and the inclusion of the child on the passport of one of the parents.
However, important actions require the express consent of both parents.
Requests relating to parental authority are within the jurisdiction of the judge in family matters, that is, the magistrate of the court of first instance who has been delegated to fulfil this function.
In principle and except in divorce proceedings, this judge can be applied to by a simple request and without the need for a lawyer. The request must indicate the object of the request and briefly explain the reasons for the request. It should be accompanied by supporting evidence such as certificates and any other documents concerning the request.
The judge decides without any formalities on the respective requests of the parties.
The judge in family matters may also be applied to in chambers by a writ of summons, which involves the intervention of a bailiff.
Legal aid can be granted if the financial means of the applicant are below a certain threshold (cf. “Legal aid - France”).
It is possible to appeal within fifteen days following the notification of the decision.
In principle, these decisions are recognised ipso jure, but if an enforcement measure is required, proceedings should be instituted before the court of first instance to have a judgment given by a court of another Member State declared enforceable in France (exequatur). The procedure differs according to the date of the decision concerned.
If this judgment is the result of court action instituted before 1 March 2001 and is given in the course of divorce proceedings, the Brussels II Regulation of 27 November 2003 is applicable. The exequatur procedure is simplified. This is a procedure carried out upon a request submitted to the president of the court of first instance. It is an accelerated procedure which is not adversarial.
If the decision stems from court proceedings which are connected with a divorce and were instituted before 1 March 2001 or if the procedure was not undertaken within the framework of divorce proceedings, the conventional exequatur procedure is applicable. This procedure is entered by a writ of summons before the president of the court of first instance.
The territorially competent court is the court of the defendant’s place of residence. If the defendant is not domiciled or resident in France, the applicant is entitled to apply to the court of their choice provided this meets the requirements for the proper administration of justice.
To appeal against the recognition of such decisions, it is possible to enter a motion in inopposability before a court of first instance. An inopposability decision provides a basis on which to oppose any further request by the other party to have a decision of a court of another Member State declared enforceable in France (request for exequatur)
Otherwise, dismissal is equivalent to exequatur.
The procedure is the same as the procedure applicable to requests to have a decision of a court of another Member State declared enforceable (request for exequatur)
The Hague Convention of 5 October 1961 applies to all children who have their residence in France or in a State party to this Convention. It stipulates that the law applicable in relationships subjecting the infant to authority is the law of the nationality of the minor child. In the case of protection measures, the applicable law is either the law of the habitual residence or the law of the nationality of the minor child.
With the exception of cases in which the Hague Convention is applicable, the applicable law is normally that of the law of the marriage if the child is legitimate and, in the case of an illegitimate child, the law of the child’s nationality.
Last update: 30-10-2006