Decision-making and Resolving the Parental Conflict

Important Issues Concerning a Child: Decision-making and Resolving the Parental Conflict Presented by: Prof. Stanić Date: 13 May 2022 Introduction - Modern concept of who is considered a subject in family relations: parents and child - Equality principle: equal role mother father - As it might be three persons who are able to participate in decision-making, there are situations of their disagreement and the conflict is possible to arise. - One of the main features is how to resolve the family conflict. Decision- making: Parents and Child - Important Issues Concerning the Child • Serbian Family Act 2005:  The education of the child  The significant medical interventions  The change of the child's residence  The disposal of the child's property of great value - Commission on Family law -Principles of European Family Law Regarding Parental Responsibilities: - Decision with a long-lasting effect for the child should be considered as important Intact Family - Parents exercise parental rights jointly and consensually when they cohabitate. - In historical context paternal power (Civil Code of the Kingdom of Serbia 1844) - Gender equality in Yugoslavia from 1946 - In some European countries the father's role was predominant until nineteen eighties (Italy until 1975, Greece 1983) Separated Family - Joint or independent exercise of parental rights - Serbian Family Act 2005: • Parents may continue to exercise jointly the parental rights even after they do not lead a common life - • provided that they make an agreement • if the court is satisfied that this agreement is in the best interests of the child Joint exercise even if parents are not in agreement: Sweden, France (for instance) Independent Exercise of the Parental Rights - Specific solution of Serbian law: • The right of the other parent to decide on issues that significantly influence the child's life, jointly and consensually with the parent exercising the pr • In a way theoretically inconsistent, as the rights of parents are similar concerning decision-making in both situations, joint and independent exercise - Why? • Assumption that independent exercise of parental rights would be predominant in practice, as joint exercise needs agreement which is not easy to reach. • The fear that the rights of the other parent would be actually decreased in practice if Act abandons rights of the other parent to decision making (in independent exercise) - One of the biggest problems is relocation of the child, a consequence - the international child abduction. - The removal or retention shall be deemed as wrongful under Serbian family law in all situations when there is absence of agreement between the parents on change of habitual residence. Right's of the Child to Decision-making - Serbian family law: • Child who has reached fifteen years of age and who is capable of reasoning has rights: • To give consent to medical procedures • To decide which secondary school will attend • To decide with which parent he/she will live, on maintaining personal contact • The right to change a personal name • To undertake legal affairs through which he/she manages and disposes of income or property earned by itself - A child who is sixteen years of age and able to reason can: • Acknowledge fatherhood and give consent to the acknowledgement of fatherhood • Request to conclude a marriage • A pregnant woman the right to independently request for an abortion • Age of ten the child who is able to reason consent • To adoption, to fostering, has the right to propose the person who shall be appointed guardian • Has the right to give consent to change his/her personal name Resolving a Conflict - Competent authority has an option to try to conciliate the parents: • - France, Sweden Competent authority can authorize one of the parents to act alone with regard to one or more specific decisions: • - Germany, Italy, Spain Competent authority can charge one of the parents with exclusive exercise of parental authority: • Belgium, Germany, Sweden, Denmark Solutions for Resolving the Conflict: Serbian Family Law - The Supreme court of Serbia has expressed the opinion that there is no possibility for the court to make a decision which would substitute necessary consent of the parent. - In particular case consent was necessary for moving abroad. Supreme court has stated that court should decide to partially derivate parent of parental rights. - There is no doubt that the court is authorized to partially deprive of parental r. the parent who refuses the consent on a decision on important issue concerning the child - But, necessary requirement for partial deprivation is that parent acts negligently - Refusing a consent per se cannot be qualified as negligent act De lege ferenda - The competent authority should be the court as court has the competence for making such decisions, judges who act in family law has to be particularly specialized in this field - The court should have options: • To try to conciliate the parents throw mediation • To authorize one of the parents to act alone with regard to one or more specific decisions. • To make decision by itself