The rule imposed by the current Romanian Civil Code is to rely on the assumption of joint parental authority. Only if the child's best interests claim it, the judge can choose parental authority exercised by one of the parents ( meaning sole custody ) – art. 397 C. Civ. 1, ‘after divorce, the parental authority is shared by both parents, unless the court decides otherwise.’
Thus, the new legislation enshrines the principle of coparenting supporting the harmonious development of the child, which in this way can benefit from the education and guidance of both parents.
The Law no. 272 on the Protection and Promotion of the Rights of the Child, Art. 30 lined up 1, referred to 33 article from the same law guarantees the right of the child to the family life, having the right to grow up with his parents as well as the fact that he can not be separated from his parents or one of them, against their will, except the cases provided by the law, subject to judicial review and only if this is required by the best interests of the child.
According to the art. 14 of Law no. 272/2004, 'the child has the right to maintain personal relationships and direct contacts with parents, relatives, and other people to whom the child has developed attachment ties. The child has the right to know his relatives and to have personal relations with them, as well as other persons with whom the child enjoyed family life, as far as this does not conflict with his / her best interest.’
In addition, according to art. 16 of the same normative act 'a child who has been separated from both parents or one of them by a measure ordered under the law has the right to maintain personal relationships and direct contacts with both parents, except the situation where this is contrary to the best interests of the child.’
Similar provisions are founded in art. 262, paragraph 2 of the Civil Code, according to which ‘a child who does not live with his parents or, as the case may be, to one of them, has the right to have personal ties with them. The exercise of this right can not be limited except under the conditions provided by law, for sound reasons, taking into account the best interests of the child.’
Therefore, in Romania, the courts state that any measure concerning the child must be taken in the best interests of the child. The expression 'superior interest of the child’ refers to the well-being of a child.
The Romanian courts also have begun to invoke the Agreement No. 2/2016 published in the Official Gazette of 25.02.2016, according to which the Romanian Psychologists' College recognised the phenomenon of parental alienation as a form of severe psychological abuse on the child. The severe psychological abuse of the child by one of the parents falls within the cases provided for by Law 272/2004.
Article 94 of Law 272/2004 refers to the emotional abuse of the minor and recognise it as a form of abuse. Child abuse means any voluntary action by a person who is in a relationship of responsibility, trust, or authority towards him, by which they are endangered life, physical, mental, spiritual, moral or social development, physical integrity, physical or mental health of the child, and is classified as physical, emotional, psychological, social and economic abuse.
Child neglect means ‘the omission, whether voluntary or involuntary, of a person who has the responsibility of raising, caring for or educating the child to take any measure required to do so, life-threatening, physical, mental, spiritual, moral or social development, physical integrity, physical or mental health of the child, and which can takeseveral forms: food, clothing, neglect of hygiene, medical neglect, educational neglect, emotional neglect or child abandonment / family abandonment, which is the worst form of neglect.’
What does the child's best interest in the Romanian legislation mean:
Article 21 of Law no. 272/2004 order this as follows:
'If the parents do not have the same opinion regarding to the child's home, the guardianship court will settle his or her home to one of them, according to the art. 496 alin. (3) of the Civil Code. When the child's interest is established, the court may consider, in addition to the elements provided in art. 2 alin. (6), some other issues such as:
Negative aspects of Romanian legislation:
Article 912 of the Code of Civil Procedure- Minor`s refusal
If the bailiff finds that the minor himself refuses to leave the debtor or manifests aversion to the creditor, will draw up a record of its findings and will communicate it to the parties and to the representative of the General Directorate for Social Assistance and Child Protection.
The representative of the General Directorate for Social Assistance and Child Protection will notify and ask the competent court at the place where the child is living, to dispose a psychological counselling program, for a period not exceeding 3 months.
The request is urgently solved in the council chamber, by the end of no appeal, pronounced by quoting the parents and, as the case may be, the person with the child. Legal provisions on hearing the child remain applicable.
At the end of the counselling program, the psychologist appointed by the court will draw up a report that will be communicated to the court, to the bailiff, and to the General Directorate for Social Assistance and Child Protection. In fact, the report could not be used by the same court to do something for the child, just noticed that it was done.
After receiving the report from psychologist, the bailiff will resume the forced execution procedure, according to art. 910 (Code of Civil Procedure), the creditor may refer the case to the competent court of the place where the juvenile is located for the purpose of applying a penalty, the provisions of art. 905 alin. (2) and (4) to (6) are applicable accordingly.
Simona Maria Vlǎdica, Ph.D., is a psychologist in Bucharest, Romania. She is an Authorized Mediator and a Lecturer member of the Faculty of Psychology - Ecological University of Bucharest. Dr. Vlǎdica is a Parliamentary Advisor for the cabinet of a Deputy in the Romanian Parliament and Head of Health Media Group in Romania, a communications and public relations company dedicated to education and health care.