Parental care and Custody of the children after divorceChristos Paraskevas
According to article 5 (1)a of the Relationships between parents and children law 1990 (216/1990), the exercise of the parental care is considered both as duty and as right of the parents who exercise it together.
Parental Care includes the determination of the name, the custody of the person, the administration of property and representation of the child in any matter or legal transaction relating to him/her or his property. (article 5 (1) b law 1990 (216/1990).
(2) Where parental care ceases through death, obscurity, or absence of a parent, parental care is exercised solely by the other. article 5 (1) b law 1990 (216/1990)
(3) If one of the parents is unable to exercise parental care for practical reasons or because he/she lack the capacity to contract or he/she is limited capable to contract, the parental care is conducted only by the other parent. article 5 (1) b law 1990 (216/1990)
According to article 9 (1) of the Law, Custody includes in particular the upbringing and supervision, education and training and the determination of the place of residence.
So it may be argued that the concept of parental care as defined in article 5 of the Law is wider than that of custody defined in article 9 of the law, as parental care includes the custody of the child, so whoever has the custody certainly has also the parental care.
Parental Care concerns seriously issues related to child custody, the management of its assets and its legal representation and any other matters which concern the health or the need for treatment of the child. Custody, on the other hand, includes all daily issues. For example, the decision whether a child will attend language courses or sports is taken from the parent who has the custody.
According to article 14(1) In the event of divorce or annulment of marriage or invalid marriage and where both parents are alive, the exercise of parental responsibility is governed by the Court.
According to article 14 (2) of the Law, the exercise of parental care may be assigned to one of the two parents or, if they agree, to both parents, defining at the same time the place of residence of the child. The court must also divide the exercise of parental care between the parents or to a third party.
In its judgment, the Court takes into consideration the ties of the child with his parents and his brothers, and any parental agreements on custody and administration of the child’s estate. The main criterion is always the interest of the child. Article 14 of the Law. The interest of the child it can be its physical, mental, moral and generally every kind of interest. And as a matter of course, in the judgment, which decides an issue of parental responsibility it should be clearly stated that the judgment of the Court in that particular issue promotes the interests of the child.
Moreover according to article 6 of the law, depending on the maturity of the child and to the extent that it has the ability to understand, it’s opinion must be sought and taken into account before any decision concerning the parental care.
So, it is important to examine under which relevant circumstances the court could assign the parental care only to one of the parents according to the law.
- When it is proved before the court that the other parent is considered to lack the legal ability (or “capacity”) to contract because is of an unsound mind, according to article 5 (3) of the law. A person might be considered as person with unsound mind and that he lacks the legal ability (or “capacity”) to contract in cases where he suffers from a mental disorder, or brain or other injury or illness.
- Because the parent is unable for practical reasons to exercise it (e.g. serious illness, he is held in prison) article 5 (3) of the law
- Where parental care ceases through death, obscurity, or absence of a parent, parental responsibility is exercised solely by the other 5(2) of the law.
- Where the provisions of article 18 apply: “If the father or mother breach the duties imposed by the duty for custody of the child or the administration of his property, or if exercising this function improperly or not be able to respond to this, the Court, if requested by the other parent or the Director may order any appropriate measure.”
The wording of Article 18 (1) of the Law has been analysed in detail by the Supreme Court of Cyprus in the decision DIRECTOR DEPARTMENT OF SOCIAL SERVICES v. Fotini Ntouma and other (2001) 1 ΑΑΔ 1911 where the court mentioned specific examples where the said article applies:
“The parental authority is not exercised according to the provisions of the law, when the parents (a) breach the duties imposed by their capacity as parents (b) there is an abusive perform of their duties (c) or there is an inability of the parents to respond to their duties.
Further, according to article 21 of the law, a parent forfeits parental care when he/she has been finally sentenced to a term of imprisonment for a fraudulent offence against the child, or because of any offence against the child’s life, health, or moral dignity. Under these circumstances, the court may also discharge the parent from the parental care of all his/her children.