Failure to respect the schedule for visiting minor children during the state of emergency

In the critical situation in which the whole world finds itself, not only do contractual relations between different legal entities suffer, but problems may also arise in relation to family relations, i.e., the visiting schedule for minors agreed by parents or courts.

In concrete terms, the problems arise in particular when we are talking about a court-ordered access program (including by way of a court order, which can be issued even during a state of emergency), consisting of the right of the parent whose child is domiciled with the other parent to pick up the child from home and return him/her at the end of the access program.

According to Article 42 para. (5) of Decree 195/16.03.2020 issued by the President of Romania, the enforcement activity continues only in cases where it is possible to comply with the rules of sanitary discipline established by the decisions of the National Committee on Special Emergency Situations in order to protect the rights to life and physical integrity of the participants in the enforcement. As we have also pointed out in the Article on the suspension of direct enforcement, we are of the opinion that, during the state of emergency, the enforcement of the provisions of the court decisions on the visitation program for minors will no longer be carried out, as enforcement would imply direct physical contact between the competent bodies participating in the enforcement, the child and the parents.

At the same time, since the issuance of Military Ordinance No. 3 of 24 March 2020 on measures to prevent the spread of Covid-19, according to Article 1 of this normative act, the movements of all individuals have been prohibited with very few exceptions, namely:

1. a) travel for professional purposes including travel between home/household and place(s) of work and back;
2. b) travel for the provision of goods covering the basic needs of persons and pets/domestic animals, as well as goods necessary for the performance of professional activity;
3. c) travel for medical care which cannot be delayed or carried out remotely;
4. d) travel for justified reasons, such as caring for/ accompanying a child, assisting elderly, sick or disabled persons or the death of a family member;
5. e) short journeys, in the vicinity of the dwelling/household, related to the individual physical activity of persons (excluding any team sports activities) and for the needs of pets/domestic animals;
6. f) travel for the purpose of blood donation to blood transfusion centres;
7. g) travel for humanitarian or voluntary purposes;
8. h) travel for agricultural activities;

(i) the movement of agricultural producers for the marketing of agri-food products.

Analyzing the above restrictions, we consider that the movement of the parent in favor of whom a program for visiting the minor child has been established in order to pick him up from his home does not fall within the exceptions provided for in Article 1 of Military Order 3 issued on 24 March 2020. In particular, not even lit. (d) (which provides for travel for justified reasons, exemplified in the care or accompaniment of the child, assistance to elderly, sick, or disabled persons, or the death of a family member) could not be considered as a situation in which the parent who invokes travel for the execution of a visiting program should not be penalized, since the list of examples in the normative act is a limitation. The accompaniment of the child should take place for reasons which subscribe to the other exceptions. In the event of an interpretation to the contrary, accompanying the child could take place anywhere outside the home, which was certainly not the legislator’s intention at the time.

As regards compliance with and implementation of a visitation program during this crisis period, the provisions of Article 379 of the Criminal Code, which governs the offense of failure to comply with measures relating to the custody of a minor, are also of interest for analysis. More specifically, para. (2) of Art. 379 of the Criminal Code establishes that it is punishable by a penalty of one to three months or a fine for the person to whom the minor has been entrusted by court order for upbringing and education to repeatedly prevent either parent from having personal contact with the minor, under the conditions established by the parties or by the competent body. Considering the length of the state of emergency, which has already elapsed, and the fact that it is objectively impossible to predict how long it will continue, we consider that this repeated nature could easily be achieved.

At the same time, Article 21 of the Criminal Code regulates the exercise of a right or the fulfillment of an obligation as a justifiable cause, stating that the act provided for by the criminal law consisting of the exercise of a right recognized by law or the fulfillment of an obligation imposed by law, in compliance with the conditions and limits laid down therein, is justified. Of interest in this legal opinion is the last sentence of this article in connection with the obligation analyzed above, namely the obligation not to leave one’s home except under the exceptions provided for in Military Ordinance No 3 of 24 March 2020, which cannot be interpreted as anything other than an obligation imposed by law. Thus, it is necessary to note that under Article 16 para. (1) letter d) of the Criminal Procedure Code, criminal proceedings may not be initiated, and when they have been initiated, they may not be continued if there is a justifiable cause, including the one provided for in art. 21 of the Criminal Code.

In view of the analysis of the above legal provisions, we consider that during the maintenance of the measures to prevent the spread of Covid-19 provided for in Military Ordinance number 3 of 24 March 2020, namely the prohibition of movement of all persons outside the home or household with the limited exceptions provided for in Article 1 of the Ordinance, the provisions of the court decisions concerning the child visitation schedule involving travel cannot be applied.

In spite of the legal analysis made above and in order to respect the best interests of children promoted by Law 272/2004 and by many specific provisions of the New Civil Code, we believe that methods can be found to maintain the child’s personal relationship with both parents and which do not consist in a physical displacement of the minor from his/her home, leaving it to the parents to find consensual and viable solutions to make this period easier for the children.