At present, the Civil Code stipulates as a general rule that the parental authority over a minor is exercised by both parents after divorce. By way of exception, in exceptional cases, the parental authority is exercised solely by one of the parents. According to article 400 – paragraph 1 of the Civil Code, the domicile of the minor shall be at one of his parents. If the parent with whom the minor lives wishes to leave with the minor and move to another country, after the parental authority was granted to one of the parents, the other parent must be notified in writing.
A parent who was granted parental authority over the minor after divorce wishes to move with the minor abroad, the other parent must approve such change of domicile. If such an approval is not granted, the parent who wishes to move abroad together with the minor must request such an approval in court. The court of law shall decide if such change of the minor’s domicile is in the minor’s best interest or not and if the parent may move abroad with the minor.
Therefore, as per the provisions of article 403 of the Civil Code on the measures that regard the minor, if the circumstances change, the guardianship court, upon the request of one of the parents, of another family member, of the child, of the tuition institution, of the child protection services or of the prosecutor, may amend the measures that concern the rights and duties of divorced parents in relation to their minor children. Consequently, in order to determine the minor’s domicile abroad, in the absence of the other parent’s approval, the other parent may go to court and request such an approval. According to article 94 – paragraph 1, article 114 – paragraph 1 of the Civil Procedure Code, the request must be submitted to the court that has jurisdiction over the minor’s domicile or residence.
In order to determine whether such a measure is in the minor’s best interest or not, the court shall thoroughly analyse the situation of the minor. The minor’s best interest is closely related to its age, the occupation and behaviour of the minor’s parents, the minor’s attachment to his parents, their income etc.
According to article 44 of Law 272/2004 on the protection of children rights, the measures determined by the court must ensure that the minor benefits of such living standards that would allow him to grow physically, mentally, spiritually, morally and socially.
In order to determine whether such a measure is in the minor’s best interest or not, the court shall take into consideration the Principles of the European Commission on Family Legislation that offer several guidelines in this regard:
- child’s age and opinion;
- child’s right of maintaining a personal relationship with the other parent;
- ability and willingness of parents to cooperate;
- personal situation of parents;
- geographical distance and accessibility;
- free movement of persons;
The court’s resolution must ensure that the minor maintains and stays in direct contact with the other parent, with his relatives and with all the other persons to whom the minor is attached to, a right acknowledged by Law 272/2004.
Moreover, the court must take into consideration if the minor can fit in the new family and social environment, if he shall be able to adapt in school, socially and from a linguistic point of view, but also the financial possibilities of the parent so as to ensure the minor well-being. Therefore, the minor must benefit abroad of all the conditions necessary for his normal physical and moral development, socio-effective balance and family life.
Each case shall be analyzed separately by the court, according to the particularities of each situation. However, the court shall take into consideration the aforementioned criteria to determine whether it is in the minor’s best interest to move abroad with the other parent or not.
Publisher: Budușan & Associates