Parental responsibility after parents' separation: Some observations.
Text by Aikaterini Foundedaki, member of the legislative drafting committee for law 4800/2021Source: syntagmawatch.gr
Date: 17/12/2020
Link: https://www.kathimerini.gr/opinion/561252724/i-goneiki-apoxenosi-kai-ta-paidia-ton-gkei/Prompted by the draft bill of the Ministry of Justice that has come to public light, the Professor of Civil Law at the Law School of the Aristotle University of Thessaloniki, Aikaterini Foundedaki, points out certain critical parameters regarding parental responsibility after separation.
Recently, due to the relevant legislative initiative of the Ministry of Justice, the issue of "joint custody" of the child in the event of the parents' separation (divorce, separation, a child born out of wedlock whose parents do not have a personal relationship) has come up for public discussion. Without clarifying the legal meaning of the term, joint custody is presented as being identical with international developments, with the child's interest, and with the need to modernize the supposedly outdated Greek family law. I believe some clarifications are essential.
1. The current Civil Code does not at all prohibit—on the contrary, it provides for—joint custody in the sense of joint decision-making by parents. Article 1510 provides that parents jointly exercise parental responsibility, part of which constitutes the custody of the child's person. Joint exercise of parental responsibility means joint decision-making and cooperation on all matters concerning the child, except for very routine or urgent matters, which each parent may handle alone (Civil Code 1516 § 1). Recently, however, to the term joint custody, those who support it have added the term "equal custody," which, beyond equality in decision-making, can only mean equal time residence of the child with each of the parents, and therefore, if they do not live together, alternating residence. Joint custody and "equal" custody are therefore different concepts that should not be confused. In any case, equal-time residence of the child with each parent is not excluded by current law either; on the contrary, it has been accepted by court decisions. Recently, the Supreme Court (Areios Pagos), in a notable and careful decision (1016/2019), ruled that alternating residence is, in principle, contrary to the child's interest, which requires clarity of roles and a stable environment. In addition, the Supreme Court noted that alternating residence is, in terms of its impact on the child, similar to very extensive contact with the parent with whom the child does not reside.
2. Despite what is often stated, no legal obligation arises from international and EU law for Greece to establish a specific system of custody and contact in its legislation. The only obligation of our country, based on international and EU law, is to enshrine in law and safeguard in practice the interest of the child and, secondarily, the family life of the child's parents. Resolution 2079/2015 of the Parliamentary Assembly of the Council of Europe, which, unfortunately in my view, is still invoked even by the Ombudsman for Children, apart from not being, obviously, legally binding, is in reality a decision of a Committee (that is, of 46 parliamentarians), which never led to a Resolution [in the formal sense] and does not even have the meaning attributed to it.
3. In public discourse, emphasis is placed on research and studies from abroad (there is no research in Greece), which highlight the advantages of joint custody and alternating equal-time residence of the child, without, however, mentioning that as a rule these studies concern parents who have a normal relationship with each other and have accepted their separation. When the parents' relationship is conflictual, equality of decisions and time between parents can be dangerous for the child.
4. The best interest of the child, as the supreme criterion for decisions by parents or state authorities on matters concerning the child, according to domestic law and international legislative texts, is an indeterminate legal concept that is specified in each particular case, based on its parameters and specific characteristics. It is neither customary nor correct to legislate abstract prerequisites and generally applicable criteria for the child's interest. Nor is it acceptable for legislation to reflect a specific ideology or perception of this interest. The opinions of certain mental health or primary education scientists regarding the advantages of "equal" custody cannot, therefore, lead to legislative definitions of the child's interest, but must be taken into account in every judicial decision concerning a specific child, together with other criteria.
5. Greek family law, after the 1983 reform, was one of the most progressive internationally. Its adaptation to modern developments requires targeted interventions in certain provisions (e.g., emphasis on the obligation of each parent to preserve the child's relationship with the other, compliance by the parent with their legal obligations regarding contact and maintenance as a criterion for the assignment of parental responsibility). Moreover, the decisions of Greek courts on matters of custody and contact should not be wholesale devalued as unjust, nor should there be an attempt to bind the judge in advance toward a particular direction. The much-vaunted trust in Greek justice cannot be selective.
6. In this context, the legislative drafting committee of the Ministry of Justice, after many meetings, proposals, and votes, submitted a draft that provided, as a rule, for the continuation of the joint exercise of parental responsibility (Civil Code 1510) even after the parents' separation. It also provided, very reasonably, that the rule of joint exercise could be departed from by agreement of the parents or by court decision, when a situation arises contrary to the child's interest. I believe the draft could also have provided for a strong recommendation to parents to seek, through an organizational agreement (a parental plan, which exists in several countries), to specify the manner of joint exercise of parental responsibility.
On the other hand, the draft bill of the Ministry of Justice that has come to public light is presented as the committee's proposal with some improvements; in reality, however, it has serious problems and differs substantially from the committee's proposal. Specifically, in contrast to the aforementioned premises, which constitute common legal ground, it includes legislative definitions of the child's interest (which it axiomatically identifies "primarily" with "the equal-time and substantive presence of both parents in the upbringing and care of the child, as well as with the prevention of the child's alienation from each of them"), and it also contains a reference to "equal" custody and "presumptions" of contact time amounting to 1/3 of the child's time. It is therefore moving in the wrong direction of imposing a general and predetermined perception of the child's interest, unjustifiably binding the judge. Such regulations are not found in legal systems that generally serve as models for Greek law, such as German, French, and Swiss law. Furthermore, it contains legislative-technical errors that have no place in legislation of the historical and systematic scope of the Civil Code (e.g., a reference in the Civil Code to another law, a contradiction between the "equal" exercise of custody and the conditional alternating residence of the child, while in reality they are identical, an unfortunate wording of the possibility of bypassing joint custody by agreement). Finally, it does not avoid extreme regulations that reflect a specific ideological direction: the inclusion in the Civil Code of the internationally disputed and, in any case, controversial concept of parental alienation is a clear, but unnecessary, political stance. The provision that the parent with whom the child resides may decide on routine or urgent matters concerning the child (that is, whether the child will have cereal for breakfast or go to the emergency room due to an injury) "after informing the other parent" may seem amusing, but it lies in the same ideological direction.
The legislator must be careful; the child's interest and the system of the Civil Code do not lend themselves to one-sided arrangements.
Katerina Foundedaki
Professor of Civil Law – Law School of the Aristotle University of Thessaloniki"