Exercise Of Parental Responsibility In Special Cases Czech Republic Experience

Exercise Of Parental Responsibility In Special Cases Czech Republic Experience Presented by: Prof. Dr. Králíčková Date: 01 December 2022 Parental Responsibility Historical Perspective - 1918-Civil Code (ABGB): Power of the Father • 1920 Constitution: Section 100 Equality (prohibition of discrimination based on sex, origin) - - 1949-Act on the Family Law (AFL): Power of the Parents/Parental Power • Expressly equality of a man and a woman, a mother and a father • Principle of non discrimination of a child born out of wedlock • Content: child upbringing, representation, administration of property 1963-Act on the Family (AF): Parental Rights and Duties • - - Content: child upbringing, representation, administration of affairs 1998: an amendment: Parental Responsibility • Minor child: active subject, participation, autonomy • Minor parent: right of care of new born child granted by the court • Content: child upbringing, representation, administration of property 2012 (2014) - New Civil Code (CC): Parental Responsibility Parental Responsibility General Principles - Aims to protect a minor child who is not fully capable - Is created upon the child's birth and extinguished upon the child acquiring full legal capacity - The duration and extent of parental responsibility may only be changed by a court - The best interest of the child/welfare/well-being must be always followed - The child participatory rights must be respected - Protection of minor and not fully capable parents Parental Responsibility Content - Section 858 CC • Parental responsibility includes rights and duties of parents consisting in  Caring for the child, including, without limitation, care for his health, his physical, emotional, intellectual and moral development,  The protection of the child,  Maintaining personal contact with the child,  Ensuring his or her upbringing and education,  Determining the place of his or her residence, representing him or her  And administering his or her assets and liabilities. - NO right to give a name and surname to a child right to give consent with adoption maintenance duty Parental Responsibility Holders - Section 865 CC • (1) Both parents have parental responsibility equally. Every parent has parental responsibility, unless he has been relieved of it. • (2) If a court decides on limiting a parent's legal capacity, it shall also decide on his parental responsibility. - - - Parental responsibility belongs only to legal parents • no discrimination based on sex, status etc. • ,„parenthood against the will of the father" Parental responsibility belongs to all parents irrespective of their age or capacity • To minor parents and to parents with mental disorder exercise is suspended • Ex lege (exception of personal care/contact) Parental responsibility cannot be transferred" on the third person Parental Responsibility Exercise of Duties and Rights in General - Section 876 CC • (1) Parents exercise parental responsibility in mutual accord. • (2) If there is a danger in delay when deciding on the matters of a child, one of the parents may make the decision or give permission himself, but is obliged to immediately inform the other parent of the state of affairs. - Section 877 CC • (1) If parents fail to agree on matter which is relevant for the child in particular with regard to his or her interests, the decision is made by a court on the application of one of the parents; this applies even where one parent excluded the other parent from making decisions on a relevant matter of the child. • (2) Especially medical and similar procedures other than those which are common, the determination of the place of residence and the choice of education or profession of a child are considered to constitute relevant matters. Parental Responsibility Exercise of Duties and Rights after Divorce - DIVORCE WITH MINOR CHILDREN: DE LEGE LATA • Section 755 (3) CC  “A marriage can not be divorced unless the decision on regulation of conditions of minor children after the divorce issued by the court has become final and conclusive” • Decision on children:  a) agreement between the parents approved by a court or  b) court's decision  on o Custody (individual, joint, alternating) o Maintenance no amount/time limit o Visiting rights not obligatory o Clausula rebus sic stantibus - DIVORCE WITH MINOR CHILDREN: DE LEGE FERENDA • Idea  The child's parents are fully competent to decide  There is no space" for paternalistic state  The court should not intervene into family ties if child is not at risk • Question  Do we have to adapt to the situation of children born out of wedlock? Parental Responsibility Rights of the Child, especially „to participate" - Section 875 CC • (1) Parents exercise parental responsibility in the best interests of the child. • (2) Before making a decision that affects the interests of the child, parents shall inform the child of everything that is necessary for the child to form his own opinion on a given matter and communicate it to the parents; this does not apply if the child is unable to properly receive the message, or form his own opinion or communicate it to his parents. Parents shall pay due attention to the child's opinion and take the child's opinion into account when making a decision. - Section 866 CC • The interests of the child are decisive for the court's decision concerning the extent of parental responsibility or the manner or extent in which it is to be exercised by the parents. - Section 867 CC • (1) Before making a decision that affects the interests of a child, a court shall provide the child with the necessary information in order for him to form his own opinion and communicate it. • (2) If a court finds that a child is unable to properly receive the information or form his own opinion or communicate it, the court shall inform and hear a person who is able to protect the interests of the child; the person's interests must not be in conflict with the interests of the child; a child over twelve years of age is presumed to be able to receive the information, make his own opinion and communicate it. The court pays due attention to the opinion of the child. - Section 892 CC • (3) A parent may not represent a child in case of a possible conflict of interest between him and the child, or between the children of the same parents. In such a case, a court shall appoint a guardian for the child.