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"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:
(As a general rule, it is exercised jointly by both parents as long as they live together, but it may be granted to the mother if the parents are not married.)
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).
(Or can a guardian be appointed if the parents are deceased or incapable of looking after their child?)
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.
(by common agreement or via the courts)
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).
(for example, approval by an authority or a court)
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.
(for example, mediation)
Requesting a decision by the guardianship authority (during the marriage).
Mediation – Law No 192/2006 on mediation and the organisation of the profession of mediator.
(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:
(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.
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).
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.
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).
Legal aid can be obtained under the conditions laid down in Articles 74-81 of the Code of Civil Procedure. It may be granted at any time during the proceedings, either in full or in part.
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.
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).
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.
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.
(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.
Further information (links to internet sites)
international judicial cooperationTop
Last update: 21-09-2007