1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?
The concept of parental authority is used in the Romanian Civil Code (Codul Civil). Parental authority means all rights and obligations relating to both the child as a person and the property of the child. The rights and obligations are shared equally between both parents and are exercised in the best interests of the child. Parental authority is exercised until the child has acquired full legal capacity.
The parental rights and obligations (provided for in Articles 487 to 499 of the Civil Code and Law No 272/2004 on the protection and promotion of the rights of children (Legea nr. 272/2004 privind protecția și promovarea drepturilor copilului)) relating to the child as a person include the following.
- The right and obligation to establish and preserve the identity of the child. The child is registered immediately after birth and has the right to a name and the right to obtain citizenship. The parents choose their child’s first name(s) and surname.
- The right and obligation to raise the child. Parents have the right and obligation to raise their child, taking care of their physical, mental and intellectual health and development, education, schooling and vocational training, in accordance with their own convictions and the abilities and needs of the child.
- The right and obligation to provide supervision of the child.
- The right and obligation to provide maintenance for the child. Parents are jointly and severally responsible for the maintenance of their minor child. Parents are obliged to maintain a child who has reached the age of majority if they are continuing their studies, until the end of those studies, but not beyond the age of 26.
- The right to take certain disciplinary measures in respect of the child. It is prohibited to take measures or apply physical punishment liable to impair the child’s physical or mental development or emotional state.
- The right to request that any person unlawfully detaining the child return them.
- The right of parents to be reunited with their child. That right is a corollary of the child’s right not to be separated from their parents, other than for exceptional and temporary reasons (e.g. placement in alternative care).
- The right of parents to have personal contact with their child. Ways of maintaining personal contact with their child include visiting them at home, visiting them when they are at school or having them spend their holidays with each of their parents.
- The right to establish where the child will live. Minors must live with their parents. If the parents do not live together, they must agree where the child will live. If the parents do not agree, the guardianship court (instanţa de tutelă) will decide.
- The right to consent to the engagement and marriage of the child in the case of minors who have reached the age of 16; the right to consent to adoption of the child.
- The right to challenge measures ordered by the authorities in respect of the child and to bring claims and actions in their own name and on behalf of the child.
The parental rights and obligations (provided for in Articles 500 to 502 of the Civil Code) relating to the property of the child include the following.
- Administration of the child’s property. Parents have no rights over their children’s property. Nor do children have any rights over their parents’ property, other than the right to inheritance and maintenance. Parents have the right and obligation to administer the property of their minor children, and to represent them in civil law acts or give consent for them to enter into such acts. After reaching the age of 14, minors exercise their rights and discharge their obligations alone, but with the consent of their parents and, where appropriate, of the guardianship court.
- The right and obligation to represent minors in civil acts or give consent for them to enter into such acts. Until the age of 14, children are represented by their parents in civil acts, as they do not have full legal capacity. Between the ages of 14 and 18, children have limited legal capacity. They exercise their rights and discharge their obligations alone, but with the prior consent of their parents.
2 As a general rule, who has the parental responsibility over a child?
The rights and obligations are shared equally between both parents (Article 503(1) of the Civil Code): where the parents are married; after divorce (Article 397 of the Civil Code); in the case of children out of wedlock whose parentage has been established in respect of both parents and whose parents live together (Article 505(1) of the Civil Code).
Parental authority is exercised unequally by (divided unequally between) parents: whose marriage has been dissolved by divorce if the court considers the exercise of parental authority by only one parent to be in the interests of the child (Article 398 of the Civil Code); whose marriage has been annulled (Article 305(2) of the Civil Code); in the case of children out of wedlock whose parents do not live together (Article 505(2) of the Civil Code).
In accordance with Article 507 of the Civil Code, parental authority is exercised by a single parent when the other parent has died, been deprived of parental rights, deprived of legal capacity by court order, etc.
Parental authority is exercised in part by the parents when the rights and obligations fall to a third person or to a care institution (Article 399 of the Civil Code).
3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?
Minor parents who have reached the age of 14 have parental rights and obligations only in respect of the child as a person. The rights and obligations in respect of the child’s property fall to the child’s guardian or to another person.
Guardianship of minors is established when both parents have died, are unknown, have been deprived of parental rights or sentenced to deprivation of parental rights, have been deprived of legal capacity by court order, have disappeared or been legally declared dead, or if, on termination of adoption, the court rules that it is in the minor’s interest for guardianship to be established.
If, after deprivation of parental rights, a child is deprived of both parents’ care, guardianship is established.
Exceptionally, the guardianship court may decide to place a child with a relative or another family or person, with their consent, or in a care institution.
4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?
After divorce parental authority falls, in principle, jointly to both parents or, if there are good reasons and it is in the best interests of the child, to one parent only. The other parent retains the right to oversee how their child is raised and educated, and the right to consent to the adoption of the child.
Exceptionally, the guardianship court may decide to place a child with a relative or another family or person, with their consent, or in a care institution. That person, family or institution exercises parental rights and obligations in respect of the child as a person (Article 399 of the Civil Code).
In the case of children out of wedlock whose parentage has been established in respect of both parents, parental authority is exercised jointly and equally by the parents if they live together. If the parents of children out of wedlock do not live together, parental authority is exercised only by one of the parents.
Divorce by agreement between spouses may be declared by a notary public also if there are minor children born in or out of wedlock or adopted, if the spouses agree on all aspects relating to what surname is used after the divorce, whether parental authority is exercised by both parents, where the child lives after the divorce, how personal contact is maintained between the non-resident parent and each child, and how much each parent contributes to the costs of the children’s upbringing, education, schooling and vocational training. If the welfare investigation report finds that the spouses’ agreement on the joint exercise of parental authority or on where the child will live is not in the child’s interests, the notary public issues an order rejecting the application for divorce and refers the spouses to the court.
5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?
Parents may, with the consent of the guardianship court, agree on the exercise of parental authority or on the taking of child protection measures, provided that the child’s best interests are respected (Article 506 of the Civil Code).
The parties may appear at any time during the proceedings, even without having been summoned, to request delivery of a judgment endorsing their agreement by issuing a consent decision. Consent decisions are final and enforceable.
6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?
Mediation is optional before a case is brought to court. During legal proceedings the judicial authorities are required to inform the parties of the possibility and advantages of using mediation. If mediation does not lead to an agreement, the dispute is resolved before the court.
7 If the parents go to court, what issues can the judge decide upon relating to the child?
See the answer to question 1.
8 If the court decides that one parent shall have sole 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?
If the court rules that parental authority is to be exercised by only one of the parents, that parent alone will decide on all matters relating to their child. The other parent retains the right to oversee how their child is raised and educated, and the right to consent to the adoption of the child.
9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?
Parents exercise parental authority jointly and equally. Either parent individually performing an everyday action in the exercise of their parental rights and obligations is presumed to have the consent of the other parent in respect of bona fide third parties.
10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?
Applications for the protection of natural persons within the jurisdiction of the guardianship and family court (district court or, where appropriate, tribunals or specialised courts for minors and families) are heard by the court in whose territorial jurisdiction the protected person is domiciled or resident (Article 94 of the Code of Civil Procedure (Codul de Procedură Civilă)).
The court in whose territory the applicant is domiciled is responsible for hearing applications to establish parentage. The court in whose jurisdiction the applicant (judgment creditor) is domiciled is responsible for hearing applications concerning the obligation to pay maintenance (including the state child allowance).
The documents to be attached to the application to institute proceedings are a copy of the minor child’s birth certificate, a copy of their identity card, a copy of the divorce decree and any mediation agreement or other documents considered useful for resolving the case. The application is exempt from court fees (taxa de timbru).
11 Which procedure applies in these cases? Is an emergency procedure available?
Throughout divorce proceedings the court may issue an interlocutory order (ordonanţă preşedinţială) (a special procedure, with shorter deadlines for settlement) adopting provisional measures to establish where minor children will live, what maintenance must be paid, by whom the state child allowance will be received and what use will be made of the family home (Article 919 of the Code of Civil Procedure).
12 Can I obtain legal aid to cover the costs of the procedure?
Legal aid can be obtained under the conditions laid down in Emergency Order No 51/2008 on public legal aid in civil matters (Ordonanţa de Urgenţă nr. 51/2008 privind ajutorul public judiciar în materie civilă), approved with amendments by Law No 193/2008, as amended.
Persons whose average net monthly income per family member in the two months before the application was submitted is less than the equivalent of 25% of the gross national minimum wage are eligible for public legal aid in the forms laid down in Article 6. In such cases the full amount of the aid is paid by the state.
If their average net monthly income per family member in the two months before the application was submitted is less than the equivalent of 50% of the gross national minimum wage, 50% of the amount of the aid is paid by the state.
Public legal aid proportionate to the applicant’s needs may also be granted in other situations where, on account of their income and proven expenditure, the actual or estimated costs of the proceedings are likely to limit their effective access to justice, including as a result of differences between the cost of living in the Member State where the applicant is domiciled or habitually resident and the cost of living in Romania.
13 Is it possible to appeal against a decision on parental responsibility?
Judgments given in cases relating to the exercise of parental authority, whether ancillary to divorce proceedings or handed down in main proceedings, are subject only to appeal (apel), within 30 days of the judgment being served. Consent decisions endorsing the agreement of the parties are subject only to an appeal on a point of law (recurs).
14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?
If a judgment debtor does not discharge their obligation voluntarily, the judgment creditor must refer the matter to a bailiff. The bailiff will ask the enforcement court to issue a declaration of enforceability. A ruling on the application is handed down in closed session, without the parties being summoned.
If the application for enforcement has been approved, the bailiff sends the parent or the person with whom the minor is living the approval statement and a summons indicating the date on which they are to appear with the minor in order for the minor to be taken into the care of the judgment creditor, or requiring them to allow the other parent to exercise their right to maintain personal contact with the minor.
If the judgment debtor does not discharge their obligation, the bailiff will proceed to enforcement in the presence of a representative of the Directorate-General for Social Assistance and Child Protection (Direcția Generală de Asistență Socială și Protecția Copilului) and, if necessary, a psychologist and law enforcement officers. It is prohibited for anyone to carry out enforcement by using force against a minor or exerting pressure on them.
If the judgment debtor does not fulfil their obligation, the penalty set by the court will run until the time of enforcement, and the bailiff will refer the matter to the prosecutor’s office (parchetul) for criminal prosecution.
If the minor refuses, the bailiff will send a record of their refusal to the representative of the Directorate-General for Social Assistance and Child Protection. The competent court will order the minor to follow a psychological counselling programme, at the end of which a psychologist will draw up a report. If, after enforcement has resumed, the minor refuses, the judgment creditor may ask the court to apply a penalty.
15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?
Decisions in matters of parental responsibility are recognised by operation of law, without any special procedure being required, in accordance with Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast).
This does not preclude any interested party from requesting a decision on the absence of grounds for refusal of recognition.
16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?
Not applicable.
17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?
Article 2611 of the Civil Code provides that the law applicable to parental authority and the protection of children is to be determined in accordance with the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, adopted in The Hague on 19 October 1996, ratified by Law No 361/2007.
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