Custody is a concept that exists in everyday vocabulary, regulated according to the provisions of the previous Family Code. With the entry into force of the New Civil Code in 2011, custody was replaced by the concept of parental authority. Parental authority is regulated by Articles 483-512 of the Civil Code. Thus, according to Article 483 of the Civil Code, parental authority is the set of rights and duties concerning both the person and the property of the child and belongs equally to both parents, but also to Law No. 272/2004 on the protection and promotion of children’s rights.
With regard to the division of property, this operation is an immediate consequence of a divorce or inheritance process. The division of property in the event of divorce depends on the matrimonial regime chosen by the spouses during the marriage, thus, according to Article 329 of the Civil Code, spouses choose their matrimonial regime on the basis of a marriage contract. In the absence of such an agreement, the legal community property regime shall apply by operation of law.
II. Parental authority
1. Types of parental authority
Parental authority may be: sole, joint legal, joint physical, and joint shared.
Parental authority is joint when exercised by both parents, even if they are separated or divorced, in accordance with the provisions of Article 397 of the Civil Code, or exclusive or sole when exercised by one parent, who has the right to make any decision concerning the child alone, in accordance with Article 398 of the Civil Code. The criterion for determining a particular type of custody is the reasons underlying this solution. With regard to the granting of exclusive custody, this is granted only if there are valid reasons, in accordance with Article 36 of Law No. 272/2004. By way of example, we mention a few reasons why exclusive custody may be applied: parental incapacity, abuse or neglect on the part of a parent. Another defining criterion is the establishment of custody in the best interests of the child, a fundamental principle applicable in all decisions concerning minors. With regard to joint legal and physical custody, in both situations, the child lives alternately with both parents.
2.Aspects regarding the procedure for obtaining custody
The steps for obtaining custody are as follows:
Filing an application with the court in the minor’s place of residence;
Conducting a social investigation by the General Directorate of Social Assistance and Child Protection, which will assess the conditions of each parent, the child’s relationship with the parents and the family environment, and the parents’ ability to ensure the child’s well-being;
Hearing the child who has reached the age of 10, in the presence of a psychologist;
The court’s decision based on the best interests of the child;
III. Division of property
In the event of a divorce, the division of the spouses’ property depends on the matrimonial regime chosen by the spouses at the time of marriage, or subsequently modified by agreement between the spouses.
- Types of matrimonial regimes:
a) Legal community of property;
Property acquired by spouses during marriage is considered joint property held in common (Art. 339 of the Civil Code);
b) Separation of property;
Under this regime, each spouse is the sole owner of property acquired prior to marriage, as well as property acquired in their own name (Art. 360 of the Civil Code);
c) Conventional community property;
The spouses establish, by mutual agreement before a notary, how the property will be held, through a notarial agreement. - Property division regime
With regard to personal property, inherited, donated, or bequeathed property; personal items; intellectual property rights, etc. are not divided. Joint property is divided, namely: income from work, pensions, property rentals; jointly acquired property, etc. - How is the division carried out?
The division is carried out in two ways: amicably and judicially.
Amicable division, whereby the spouses agree on how the property will be divided. This method is the most advantageous because it is faster, cheaper, and avoids conflict.
Judicial division occurs in the event of disagreement between the parties.