Parental authority. What does it involve?

Parental authority is the complex responsibility of parents concerning their minor child. The concept has a broad scope, representing the totality of rights and duties that concern both the person and the property of the minor, as revealed in Article 483 of the Civil Code: “Parental authority is the set of rights and duties that concern both the person and the property of the child and belong equally to both parents“.

But what does this article mean in concrete terms? What rights and duties make up the content of parental authority?

The answer is, in principle, also provided by the Civil Code, in Article 487 “Parents have the right and the duty to bring up the child, taking care of his physical, mental and intellectual health and development, of his education, teaching and professional training, in accordance with their own convictions, the child’s abilities, and needs; they have the duty to give the child the guidance and advice necessary for the proper exercise of the rights which the law recognizes for him“.

Therefore, we can deduce from the above that parental authority is concentrated on making important decisions regarding the upbringing, education, and training of the minor, as well as guiding him/her in the exercise of his/her legal rights, since, due to his/her young age, he/she cannot take care of his/her own interests.

Making these decisions on the essential aspects of the minor’s life is both a right and an obligation for the holders. They are entitled to make decisions on the above, but they cannot evade them, which means that they cannot exercise this right in a negative way, as it is also an obligation.

Who are the holders of parental authority, and how is it exercised?

From the provisions of the Civil Code, the following can be deduced:

• parental authority is exercised by both parents;
• parents will exercise it equally.

Neither parent may relinquish parental authority, but they may agree on the specific manner of exercising it, as provided for in Art. 36 para. (6) of Law no. 272/2004.

The practice of the courts is to censor any transactions and arrangements whereby a parent is excluded from exercising parental authority. In exceptional circumstances, however, a single parent may exercise parental authority. The Civil Code regulates two places when parental authority can be exercised by a single parent.

When is parental authority exercised by a single parent?

Exercising parental authority unilaterally is, in effect, granting the possibility to make parenting decisions without the consent of the other parent.

In this case, the other parent retains the right to supervise the child’s upbringing and education, as well as the right to consent to the child’s adoption, and will not be relieved of the child’s maintenance obligation.

On the one hand, the exercise of parental authority by a single parent is ordered by the court for a good cause, according to Article 398 of the Civil Code, in which case one of the parents may apply to the court for a declaration of the exercise of parental authority by that parent alone if, in practice, the exercise of parental authority is harmful to the best interests of the minor child.

There is no exhaustive list of good grounds for the court to make such a decision, but the relevant legal regulations, such as Law 272/2004, provide examples such as alcoholism, mental illness, drug addiction of the other parent, violence against the child or the other parent, convictions for human trafficking, drug trafficking, sexual offenses, violent offenses, and any other reason related to the risks to the child arising from the exercise of parental authority by that parent.

Judicial practice is somewhat reluctant to order this measure, so there must be a proven objective situation likely to prejudice the child’s best interests. Not every minor inconvenience caused by a parent’s attitude or a disagreement between parents can constitute grounds for such a measure.

In addition to these, other reasons have emerged in judicial practice, such as:

• a parent’s lack of interest, manifested by his or her passivity towards the child’s upbringing, education, maintenance, and interest activities, having a harmful effect on the child;
• a state of the ongoing conflict within the family, manifested by strained relationships between parents, parents, and children, affecting the best interests of the minor;
• the significant distance between family members cannot be the only reason, but if combined with other factual situations, it could have a harmful effect.

One parent’s exercise of parental authority should not necessarily be seen as a sanction of the other parent but as a measure taken to serve the child’s best interests.

On the other hand, the Civil Code also provides for a number of situations in which a parent exercises parental authority alone, the cases being listed exhaustively by law. Thus, parental authority is exercised exclusively when:

• one of the parents is deceased;
• one of the parents is declared dead by court order;
• one of the parents is placed under a ban;
• one of the parents is deprived of parental rights;
• one parent, for whatever reason, is unable to express his or her will, in which case the other parent exercises parental authority alone.

These genuine exceptions to the principle of dualism in the exercise of parental duties can be divided into two categories. The first category represents an objective prejudice to the best interests of the child based on certain unbiased factual circumstances. In other words, there is no “fault” of a parent. In contrast, in the case of disqualification, a ‘fault’ can be established on the basis of evidence.

The first two cases listed in Article 507 of the Civil Code are relatively easy to understand because once a parent is deceased, only the living parent can exercise parental authority, and the same is true in the case of “presumed death” ordered by a court decision after a person’s long-term disappearance.

Moving on, the prohibition also entails exclusive parental authority over the minor. A temporary restraining order is a protective measure for persons who no longer have the necessary discernment to protect their own interests and are thus unable to represent the interests of the minor.

Last but not least, when a parent is unable to express his or her will regarding essential decisions in the minor’s life, the court may authorize a single parent to carry them out. By way of example, the following examples can be given: one of the parents is in a coma, is missing, cannot be contacted, his or her place of work does not allow him or her to be in contact with the family for a certain period of time (military operations, espionage, etc.).

The last case is the forfeiture of parental rights. This is ordered at the request of the public administration authorities responsible for child protection if the parent endangers the life, health, or development of the child through ill-treatment, alcohol or drug abuse, abusive behavior, serious negligence in the performance of parental duties, or severe harm to the best interests of the child. Forfeiture is the deprivation of parental rights, but the parent retains the right to consent to the adoption of the child.

In conclusion, parental authority is the parent’s responsibility for decisions that will influence the development of the minor they care for. It is usually exercised by mutual agreement, equally by both parents. Quite exceptionally, parental authority is vested in one parent when the minor’s best interests are required.