The legislation of the Republic of Moldova vs. family disputes regarding the stability of the minors’ domicile after the separation of the parents – Ziarul de Garda
Is the legislation of the Republic of Moldova adequate, which would allow the rapid re-establishment of contact between parents and child, in family disputes, so that separations do not have irreparable consequences on the relationship between the child and the parent who does not live with him?
Violeta Gașițoi, lawyer
In the Republic of Moldova, parents, minor children and their lawyers face serious difficulties in resolving and resolving disputes related to parental rights.
The current legislation of the Republic of Moldova does not ensure the access of persons to judicial protection within a reasonable time, in disputes involving minors. Although the European Court of Human Rights (ECtHR) has repeatedly recommended that such disputes should be examined in a limited time, current legislation requires parents to address primarily non-judicial administrative bodies, decisions that are inefficient and non-enforceable.
For example, the Family Code stipulates that, before addressing the court, the parents must appeal to the guardianship body, after which, if they do not agree with the decision of these institutions, they should go to court. This chain restricts the access to justice of the citizens of the Republic of Moldova, violates the right to examine the case in reasonable and restricted terms, does not allow the execution of the decision of the guardianship body because the Enforcement Code does not provide for these decisions to be executed.
The decisions of the guardianship bodies are not acts invested with the executory formula in the conditions in which they offer the right to forced execution. For example, if the Directorate for the Protection of the Rights of the Child issues a decision on the stability of the schedule of parent-child meetings, it cannot be enforced by bailiffs, and the parties will have to obtain a court order to enforce it. . .
The Family Code does not provide for the possibility of granting joint guardianship to minor children so that both parents can exercise their right to education and maintenance equally. This provides for resolving numerous disputes in situations where the parents live in the same city.
Another legislative issue is that the law does not require the court to issue a schedule of parent-child meetings on the stability of the minor’s domicile, in other words, if the permanent domicile is established with one parent, the other parent, if there is no agreement between the parents. . , must address the guardianship body for the stability of a schedule of meetings, if he does not agree with the decision, or the decision is not executed, the parent must address the court to request the stability of a schedule of meetings. In this situation, the legislation of the Republic of Moldova becomes ineffective because these disputes, according to the ECtHR recommendations, must be examined in limited terms, while in reality, under the conditions of the Republic of Moldova, these disputes are examined in 3, 4, 5, 6 years, and the passage of time can have irreparable consequences for the relationship between the child and the parent who does not live with him.
The art. 64, para. 2 provides that parents have the right to sign an agreement on the exercise of parental rights by the parent living separately. Disputes arise are resolved by the guardianship authority, and the decision can be challenged in court.
If we analyze this aspect and judicial practice of the Republic of Moldova, we notice that this provision is a real catastrophe for parents living separately from children, but also for their minor children. That provision restricts parents’ direct access to justice and causes delays in the examination of these disputes, and we are in a situation where the consequences of long time can be irreparable in disputes involving minors.
The law should provide for the possibility of direct litigation, as only the court has the guarantees of an effective and fair trial such as the possibility of enforcement of the judgment, procedural guarantees of the parties are principles of equality, fairness, publicity, including the right to a fair trial. . No one rules out the need for the presence of the guardianship directorate in such disputes, only that its presence must be a consultation.
Likewise, a problem is contained in art. 64 paragraph (2 3) which provides “If the parent at the domicile of the communication has been established the domicile of the child leaves for another locality in the country or abroad with the child or leaving the child in custody, he secures the child with the other parent through his. information technologies by other means, but also the possibility of accessing the child by the other parent ”.
From the practice of such disputes, when the parents settle with the children abroad without the existence of a prior or court decision that obliges them to a schedule of meetings and communications with the other parent, it creates the impossibility of the parent living separately to communicate with the child, to have meetings with zcesta at his home. The parent has to appeal to the court and obtain, according to the law, a communication and meeting schedule with his minor child. inefficient because the institution has no legal authority to resolve such requests. According to the law, the Guardianship Directorates only examine disputes between the parties within its territory, on the one hand, and, on the other hand, when the parties go to court, they reject requests for the stability of a schedule of meetings and communications with minors.
At the same time, the decisions of the guardianship body, if the parents are domiciled with minors abroad, cannot be enforced in that territory because they do not have enforced legal power, or in many states only the judgments of that state can be enforced. In other words, even if Moldova required the Child Protection Directorate to issue this parent-minor communication and meeting schedule, they would not be enforceable in a foreign territory.
The purpose of extrajudicial proceedings is to reduce the workload of the courts, but this is contrary to the international provisions to which Moldova is a party. Everyone has the right to go to court to defend their rights. Only the courts are empowered to enforce the judgment, are independent and impartial, use the fact-finding procedure, apply the principle of adversarial proceedings and equality of arms, have other procedural guarantees that ensure a fair trial within a reasonable time. No administrative body created by the state authorities has the guarantees of a fair trial and cannot be considered effective respectively. Forcing people to turn to these institutions in fact is a direct obstacle to people’s access to fair justice within a reasonable time.
For example, US practice does not show that such disputes should be examined by lawyers and courts specializing in family disputes. In the United States, such disputes are dealt with by the Family Court, which is a separate court. The judges of these courts specialize in examining disputes between parents, parents and children or disputes that arise between the public administration and family members. The procedure in these courts is fast, efficient, and the decision is executed immediately by the boss. During the dispute, the authorities are obliged to maintain the parent-child relationship throughout the process, ensuring that the children have effective communication with both parents equally.
What are the obligations of the authorities in this situation?
- The statute must take effective measures with regard to respect for family life, including in the sphere of relations between individuals.
- The statute has a positive obligation in terms of respecting family life, and this requires adequate and effective implementation of legislation to ensure the legitimate rights of individuals.
- The statute must take measures to re-establish contact between the parents and the child, including in the event of a conflict between the parents. In order to be considered appropriate, measures to re-establish contact between the parent and the child must be implemented quickly, as the passage of time can have irreparable consequences for the relationship between the child and the non-living parent. In addition, even if the behavior and cooperation of the persons involved is always an important factor, the lack of cooperation between divorced parents cannot relieve the competent authorities of the obligation to take all appropriate measures to ensure the maintenance of family law.
What would I recommend to the Republic of Moldova?
- To amend the legislation requiring the prior address to the administrative bodies in disputes regarding the parent-child meeting. In other words, the company must be able to choose the direct address to the court or the administrative bodies for resolving disputes related to family law. The amendment and the obligation of the courts to resolve disputes concerning the stability of the schedule of parent-minor meetings should be introduced, together with the dispute establishing the domicile of the minor when there is no knowledge to that effect.
- Introducing a maximum period of 3-4 months to complete the examination of disputes involving minors. These disputes must be examined as a matter of priority.
- It should thus identify the establishment of specialized courts for the examination of family disputes, so that such disputes when involving minors are examined in restricted terms so as not to prejudice parent-child communication. The creation of specialized courts will also increase the quality of examinations of these disputes.
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