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Last update: 23-04-2007
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Parental responsibility - Slovenia

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TABLE OF CONTENTS

1. What does the legal term "parental responsibility" mean? What are the rights and obligations of a holder of parental responsibility? 1.
2. As a general rule, who has parental responsibility? 2.
3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place? 3.
4. If the parents divorce or split up, how is responsibility for the children determined? 4.
5. If the parents conclude an agreement on parental responsibility, which formalities must be respected to make the agreement legally binding? 5.
6. If the parents cannot come to an agreement, what alternative means are available to them? 6.
7. If the parents go to court, what issues can the judge decide upon? 7.
8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent? 8.
9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice? 9.
10. Which court or authority is competent to decide? Which formalities must be respected and which documents are required? 10.
11. Which procedure applies in these cases? Is an emergency procedure available? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision on parental responsibility? 13.
14. In certain cases, it may be necessary to apply to a court to have a decision enforced. Which procedure applies? 14.
15. What should I do to have a decision issued by a foreign court recognised and which procedure applies? 15.
16. To which court should I turn to oppose the recognition of a decision issued by a court in another Member State? Which procedure applies in these cases? 16.
17. Which law does the court apply in a proceeding where the child and the parents do not live in Slovenia or are of different nationality? 17.

 

1. What does the legal term "parental responsibility" mean? What are the rights and obligations of a holder of parental responsibility?

Parental responsibility for children:

Parental responsibility is a legal relationship governed by family law. The relationship arises when a child is born or when paternity and maternity are established. In the Slovenian legal system the rights and obligations of children born out of wedlock are the same as for those born in wedlock. Slovenian law applies the system of full adoption under which adopted children are treated the same as natural children.

The legal basis is Article 54 of the Slovenian constitution which lays down that parents have the right and duty to maintain, educate and raise their children. This right and duty may be revoked or restricted only for such reasons as are provided by law in order to protect the child's interests. Children born out of wedlock have the same rights as children born within it.

Mutual rights and obligations between parents and their natural and adopted children constitute parental responsibility (Articles 4, 5 and 7 of the Marriage and Family Relations Act, Ur. l. RS (Slovenian Official Gazette) No 15/76 (Zakon o zakonski zvezi in družinskih razmerjih - ZZZDR).

Liability in tort of parents in respect of their children is laid down in Article 142 of the Code of Obligations (Obligacijski zakonik - OZ). Parents are liable for damage caused to third parties by their children until they reach the age of seven, irrespective of fault on their part.

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Parents are liable for damage caused to third parties by their children over the age of seven unless they can prove that they were not responsible for the damage.

Article 107 ZZZDR lays down rules on the representation of children, action on their behalf vis-à-vis the outside world and the management of their property. Minors are represented by their parents. If notice has to be served on a minor, it may also legitimately be served on one of the parents or, if the parents do not live together, on the parent living with the child.

If both parents have custody of the child, they must agree on the child's permanent place of residence and which of them should be served notice in respect of the child. Parents must manage the property of a child in the child's interests until he or she reaches the age of majority (Article 109 ZZZDR).

Rights and duties of parents and children:

Parents must provide their child with the conditions for healthy growth, harmonious personal development and the progression to independence in life and work. They are responsible for supporting their children and attending to their living conditions, health and upbringing. They must make every effort to ensure their children's education and vocational training. A child has the right to contacts with both parents and both parents have the right to contacts with the child (Articles 102, 103 and 106 ZZZDR).

2. As a general rule, who has parental responsibility?

Parents must exercise their parental rights by mutual agreement in accordance with the interests of the child. Where parents are living apart but custody of the child is not shared, they must mutually decide questions which significantly influence the child's development in accordance with the interests of the child.

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Whichever parent has custody of the child must decide matters which affect the child's day-to-day living. If one of the parents is prevented from exercising their parental responsibility, the other must exercise it on their own. If the parents live apart, whichever of them lives with the child must exercise parental responsibility. In the event of divorce or annulment of the marriage, the parent given custody of the child exercises the parental responsibility (Articles 113 and 115 ZZZDR).

3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

A child may be cared for by other persons or institutions. The Social Services Centre may remove a child from its parents and put it in the custody of a third person or institution if the parents neglect the child's care or if it is otherwise in the child's interests (Art. 120 ZZZDR).

A child may be cared for by an adoptive parent. A child is only eligible for adoption if its parents are unknown or if their residence has been unknown for one year or if its parents have agreed before the competent authorities to give their child for adoption or if it has no living parents (Art. 141 ZZZDR). A child may also be entrusted into foster care (a foster parent is a person who is not the child's actual parent (Articles 154-159 and 176 ZZZDR, and, in particular, the Foster Care Act, Ur. l. RS No 10/2002)) or into the care of a guardian (Articles 178, 182, 201 and 202). A guardian is responsible for caring for the child like a parent and may also be a relative of the child.

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4. If the parents divorce or split up, how is responsibility for the children determined?

If parents are living apart or about to separate, they must agree on the custody and maintenance of their joint children and on contacts between the children and parents in accordance with the interests of the children (Articles 105 and 105(a) ZZZDR).

Where parents are living apart but custody of the child is not shared, they must mutually decide questions which significantly influence the child's development in accordance with the interests of the child. If the parents cannot agree, the Social Services Centre will help them to reach agreement. Whichever parent has custody of the child must decide matters which affect the child's day-to-day living. If in such cases the parents cannot agree on questions which significantly influence the child's development, even with the help of the Social Services, the decision is taken by a court, on a proposal by one or both of the parents, in uncontested proceedings (Article 113 ZZZDR).

5. If the parents conclude an agreement on parental responsibility, which formalities must be respected to make the agreement legally binding?

If parents are living apart or about to separate, they must agree on the custody and maintenance of their joint children and on contacts between the children and parents in accordance with the interests of the children.

If the parents agree on the custody of the children, they may propose that the court issues an order to that effect in uncontested proceedings. If the court finds that the agreement is not in the child's interest, it may reject the proposal. If the parents cannot agree, the Social Services Centre will help them to reach agreement. If the parents fail to reach agreement even with the Social Services' help, the court will adjudicate at the request of one or both parents.

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Before the court rules on the case, it must seek the opinion of the Social Services Centre in the interests of the child. The court must also take account of the child's opinion, if it is expressed by the child itself or through a person that the child has chosen and trusts and the child is capable of understanding the significance and consequences. An application by the parents for a court decision must be accompanied by proof from the relevant Social Services Centre that the parents tried to reach agreement on the custody of their joint children with its help (Articles 105, 105(a) and 106 ZZZDR).

6. If the parents cannot come to an agreement, what alternative means are available to them?

If the parents cannot agree, the Social Services will help them to reach agreement. If they fail to reach agreement even with the help of the Social Services Centre, the matter will be decided by the court (Articles 105, 105(a) and 106 ZZZDR).

7. If the parents go to court, what issues can the judge decide upon?

The court can decide whether all children should be put in the custody of one of the parents or which children should be given to one parent and which to the other. The court may also decide ex officio that all or some of the children must be entrusted to the custody of a third party.

Before the court rules on the case, it must seek the opinion of the Social Services Centre in the interests of the child. The court must also take account of the child's opinion, if it is expressed by the child itself or through a person that the child has chosen and trusts and the child is capable of understanding the significance and consequences.

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The court also rules on the child's maintenance and on contacts. A child has the right to contacts with both parents and both parents the right to contacts with the child. The court may take away or restrict the right to contacts only if necessary to protect the child's interests. Contacts are not in the child's interests if the child is disturbed by them or if they threaten the child's physical or mental development. The court can rule that contacts should take place under the supervision of a third person or in some other way not involving meeting or association if it would otherwise not be in the child's interests. Before the court rules on the case, it must seek the opinion of the Social Services in the interests of the child. The court must also take account of the child's opinion, if it is expressed by the child itself or through a person that the child has chosen and trusts and the child is capable of understanding the significance and consequences. The child has the right to personal contact with relatives and other persons he/she is particularly close to unless it would not be in his/her best interests (grandparents, brothers and sisters, half-brothers and half-sisters, former foster-parents, the former or current spouse or cohabiting partner of one or the other of his/her parents) (Articles 105, 105(a), 106 and 106(a) ZZZDR).

8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

No. If the parents live apart but do not share custody of the child, they must mutually decide questions which significantly influence the child's development in accordance with the interests of the child. If the parents cannot agree, the Social Services Centre will help them to reach agreement. Whichever parent has custody of the child must decide matters which affect the child's day-to-day living. If the parents fail to agree on questions which significantly influence the child's development, even with the help of the Social Services Centre, the decision must be taken by a court, on a proposal by one or both of the parents, in uncontested proceedings.

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9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

This means that both parents are equally liable for the child's custody and must continue to care for him/her.

10. Which court or authority is competent to decide? Which formalities must be respected and which documents are required?

The district court (Article 32 of the Civil Procedure Act (Zakon o pravdnem postopku - ZPP)) which has general local jurisdiction for the defendant, i.e. the court in whose territory the defendant is temporarily or permanently resident (Article 47 ZPP). However, in disputes over legal maintenance where the plaintiff is the person applying for maintenance (Article 50 ZPP), jurisdiction lies not only with the court that has general local jurisdiction but also with the court in whose territory the plaintiff is temporarily or permanently resident.

The provisions of ZPP must be respected, in particular Article 104 which stipulates that applications to the court must be made in the Slovenian language, Article 105 which stipulates that applications must be submitted in writing and lays down the compulsory content, Article 106 which stipulates the number of copies to be submitted, Article 107 which prescribes the supporting documents to be attached, and Article 180 which prescribes the contents of the complaint.

11. Which procedure applies in these cases? Is an emergency procedure available?

The procedure in matrimonial disputes and disputes arising from relationships between parents and children is laid down in Chapter 27 ZPP (Articles 406-414).

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Under that procedure the court may issue, on application by either party or ex officio, temporary injunctions on the custody and maintenance of joint children and temporary injunctions removing or restricting the right to contacts or concerning the way contacts take place.

Temporary injunctions are issued in accordance with the act on the insurance of claims (Zakon o izvršbi in zavarovanju - ZIZ).

12. Can I obtain legal aid to cover the costs of the procedure?

Free legal aid is governed by the Free Legal Aid Act (Zakon o brezplačni pravni pomoči - ZBPP), which lays down conditions for granting such aid and the scope thereof (right to funds to meet the costs of legal help in full or in part and exemption from payment of the costs of proceedings).

It is also possible in the actual proceedings to apply for exemption from payment of court fees or exemption from payment of the cost of proceedings; the relevant conditions are laid down in Articles 168 and 169 ZPP.

13. Is it possible to appeal against a decision on parental responsibility?

Yes, the court's judgment may be appealed to a higher court. The appeal must be lodged at the court which pronounced the judgment in the first instance in a sufficient number of copies for the court and the other party (Article 342 ZPP).

14. In certain cases, it may be necessary to apply to a court to have a decision enforced. Which procedure applies? 

The enforcement procedure laid down in the Execution of Judgments in Civil Matters and Insurance of Claims Act (ZIZ), in particular the special procedure laid down in Chapter 20: enforcement in cases concerning the custody of children and personal contacts with children (Articles 238(a)-238(g) ZIZ).

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15. What should I do to have a decision issued by a foreign court recognised and which procedure applies?

The conditions governing recognition and enforcement of legal judgments of foreign courts and other public acts are laid down in Chapter 4 of the Private International Law and Procedure Act (Zakon o mednarodnem zasebnem pravu in postopku - ZMZPP, Articles 94 to 111).

A judgment of a foreign court is deemed equivalent to a judgment of a Slovenian court and has the same legal effect in Slovenia as a domestic judgment provided it is recognised by a court in the Republic of Slovenia. A person lodging an application for recognition must attach the foreign judgment to the proposal for the recognition of the foreign judgment, or a certified copy of it, and attach a certificate delivered by the competent foreign court or other body concerning the legal force of that judgment in the law of the state that issued it. If the foreign judgment is not drawn up in an official language of the court, the party applying for recognition must also submit a certified translation of the foreign judgment in an official language of the court.

The above provisions also apply to enforcement of the foreign judgment. In addition to a certificate concerning the legal force of the foreign judgment, the person applying for enforcement must also submit a certificate on its enforceability in the law of the issuing state.

The district court rules on recognition (Article 32(2) ZPP, Article 101 of the Courts Act (Zakon o sodiščih)). The court rules on the recognition of the foreign judgment in accordance with the rules on uncontested proceedings (Article 1(2) of the Non-litigious Civil Procedure Act (Zakon o nepravdnem postopku - ZNP)).

16. To which court should I turn to oppose the recognition of a decision issued by a court in another Member State? Which procedure applies in these cases?

The district court is competent for decisions on the recognition of foreign judgments. The procedure applied is that for uncontested proceedings.

17. Which law does the court apply in a proceeding where the child and the parents do not live in Slovenia or are of different nationality?

Relations between parents and children are judged in accordance with the law of the state of which they are citizens. If the parents and children are citizens of different countries, the law of the country in which they all have their permanent residence applies. If the parents and children are citizens of different countries and do not have permanent residence in the same country, the law applied is that of the country of which the child is a citizen (Article 42 ZMZPP).

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Last update: 23-04-2007

 
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