Romania: new equal parenting laws

Posted on November 25, 2013 by

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Shared custody in Romania today

                                                                                                                                                                                        Information sourced from Mr. Codin Baltagan, Bucharest, Romania

– President of ARPCC (Association for Joint Custody).

Isn’t it absurd , isn’t it incongruous, that in the battle for ideas and ideologies that raged for 40 years and we call the Cold War – where everything behind the Iron Curtain including values and social systems were despised – that we in the West, should have now adopted some of those very same repressive measures ?

Child Support in the form we have known it from the 1990s, originated in the East and one can see why after reading the changes being made to Romania’s child custody laws. The old Communist “Family Code of 1954 allowed only “mother sole custody” arrangements after a couple’s divorce.

Small beginning

The EU has been blamed at times for many things so it’s refreshing to learn from Romania that the start of the reform process (the Law 272/2004) was in preparation of ascension into the EU.[1]

The Romanian reforms of 2004 included legal acknowledgement of “personal relationship” that a child would have with both parents.

The reforms also introduced the concept that judges should decide cases based on “the best interests of the child.” As Romanian fathers found out for themselves, only in theory does this give equal chances to both parents to gain the custody of their child.  In practice they found this reform was ignored or abused by judges. The small crumb of comfort was that it did at least have ‘value’ in that it introduced the hypothesis that there was the right of the child to have ‘personal relationships’ with the non-residential parent – which was a step forward for a former Iron Curtain country.

New Law of 2011

In Oct 2011 a new civil code entered into effect which allowed parents to agree on shared custody (referred to in some jurisdictions as ‘joint physical custody’). If both parents could agree a Parenting Plan  i.e. a schedule allocating a child’s time and residence between both parents, this would be generally accepted by the Romanian judges. If however, the parents could not agree, there was a “rebuttable presumption for joint legal custody” included in the legislation.

Again, in practice, the substantial part of “residence”, i.e. where the child would actually live, still favoured mothers. Romanian judges have shown a reluctance to give residence of the child to the father. They will never order ‘shared residence’ and indeed the law does not actually allow it. Only where a consensus between both parents exists does it become a possibility.

The 2013 New Law

Another new piece of legislation came into effect in Oct 2013 (see footnotes).  [2]  It changed several aspects in relation to divorce (attributed to the successful lobbing of the Ministry of Work by ARPCC, the Assoc. for Joint Custody). [3]

The legislation introduces a definition of the “best interests of the child” – by way of contrast, the old 2004 law never actually explains how to asses it so most judges decided that “it is in the best interest of the child to stay with the mother” (something we in the West have become very familiar with and can have great sympathy with Romanian fathers).

However, the new 2013 law offer some clear rules.

The new law prevents parents from loosing custody. This was needed because between Oct 2011 and Oct 2013 about 50% of the parents going through the divorce courts told judge (on the advise of their lawyers or by the other parent), that they agree not to have the joint legal custody.

This is now explicitly forbidden by the Law 257/30.09.213. It is expected by the Romanian based ‘Assoc. for Joint Custody’ that about 20,000 children will no longer lose the legal relationship (custody) of their father (most of those who lost custody were fathers)

Other benefits of the new legislation include the setting of a clearer criterion for deciding ‘residence’ between the two parents which does not include the “gender” of the parent:

  • The willingness of each parent to involve the other parent in the decisions related with the child (the so called “Californian principle”)
  • The willingness of each parent to preserve a personal relationship with one another
  • To access the housing situation (e.g. which parent owns a house, how suitable is the house)
  •  The history of violence of each parent against the kid (one can’t escape this catch-all obstruction these days, regardless of jurisdiction – RW)
  • To take into consideration the distance between the houses of each parent and the school

Romania’s ARPCC (Association for Joint Custody) hope that over time this will be embraced by judges, and to revert to not to use the invisible criteria of  “the child must go to the mother.” invisible criteria. But they are  all too aware that the  “maternal preference” is deep rooted in the minds of the divorce judges.

Mediation as part of ‘the deal’

From 2013 and onwards, everyone who goes to Court needs first to attend mediation meetings and to draw up a Parenting Plan. The ARPCC have been pro-active in devising a Parenting Plan for use by mediators and the intention is that it will offer the child more time with the other parent (father) than would be ‘the norm.’ [4]

Curiously, it is reported that the Romanian Ministry of Justice do not want to officially use the term “Parenting Plan”, preferring to call it a “transaction” or “deal” although many parents, lawyers, mediators  and even judges use the term Parenting Plan.

How a child’s time will be spent

Where parents agree to opt for shared custody this would be in the region of a 40% to 60% split, so well above the minimum 35% that academic literature seems to prefer as the definition of ‘share care’. The split can be based on days or weeks but the report we have does not mention “sleepover” as essential to comply with Romania’s new post-divorce custody laws.

Optimistically, it is reported that where parents do agree joint legal custody (and they mediate or if the non-residential parent has a good lawyer and can prove a lot of involvement and then encounter an open minded judge), a father might get more than “one week every 14 days” – though one wonders how often that will occur given workforce commitments.

The Old Law

Compared with the Family Code of 1954 Romanian has moved a long way – arguably further than Britain. [5]  From the de fault “sole mother custody” position to a semblance of shared parenting (we have yet to see how it pans out), is nevertheless a notable achievement.

The mindset of 1954 was one where the state declared “the state protects the mother and the child.” Following the fall of Communism, numerous claims made by many fathers were made to the Constitutional Court (from 1990 till 2011) and despite these efforts that legal mainstay was never cancelled.

Eventually, the 1954 Family Code was replaced by the New Civil code of Oct 2011 and since then amended again to embrace joint custody, i.e. legal or physical joint custody is allowed.

Romanians new civil code allowed for ‘a presumption’ that joint legal custody is in the best interest of the child (which is where Britain is at present), but later allowed joint physical custody (i.e. shared custody) if both parents agree to such deal. In which case, Britain has now been overtaken by Romania, according to this report from Codin Baltagan, in Bucharest.

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Footnotes:

[1] See Law  272/2004.

[2]  See Law 257/30.09.213  An English translation of ‘Law 257’ (made by ARPCC) can be found at https://docs.google.com/file/d/0B-iOqOKLc35PY0c1UjVOTldzRTQ/edit.  Codin also comments; “Automatic google translation” of the full L272 (as it was upgraded by Law 257/2013). Text in black represent the old law, text in green represent the additions of the new law: http://translate.google.com/translate?sl=ro&tl=en&js=n&prev=_t&hl=en&ie=UTF-8&u=http%3A%2F%2Fwww.arpcc.ro%2Flex%2F272

[3] ARPCC (Association for Joint Custody, in Romania).

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