How is parental responsibility determined and awarded?
Under Greek law, parental responsibility (term usually equals to legal custody in different legal systems) on the minor child, namely a child under eighteen (18) years of age for the case of Greece, is both a right and a responsibility of the parents, who, in principle, (have to) exercise it in common. Parental responsibility includes not only (physical) custody of the child, but also administration of the child’s estate and child’s legal representation in all its affairs.
Custody entails, mainly but not exclusively so, the upbringing / raising, supervision, education and training of the child, as well as the determination of the child’s residence.
Parental responsibility is awarded, therefore, to both parents at the child’s birth and will not be withdrawn from one or both of them, save in exceptional circumstances.
The exercise of parental responsibility and the particular rights and obligations of the parents have to be specified and each right/responsibility or groups of them have to be allocated to each parent, in case the parents stop living together and relevant disputes arise.
The parents may bindingly agree upon the way of exercise of parental responsibility – which will necessarily include issues of custody.
Otherwise, the Court shall regulate both the exercise of parental responsibility and custody of the minor child.
Application to the Court may take the form of application for provisional – interim measures as well, in case that the matter should urgently be settled, until the issue of the court’s final judgment on the issue.
Which factors are to be taken into account for allocation of custody and exercise of parental responsibility?
The Court’s main factor for allocation of custody and exercise of parental responsibility between parents is the child’s real best interest, which has to take into account its physical, welfare, mental, psychological and all relevant interests, that aim at the creation of an independent and responsible person.
According to Greek case law, in order that the Court adjudicates upon the above allocation, it takes into consideration the stability of the environment in which the child is going to live, the close connection the child may have with certain persons (not only relatives) and/ or things.
Furthermore, the child’s best interest is determined by reference to the following elements:
- the parents’ suitability for undertaking the responsibility of educating and taking care of the minor child,
- the connections that the child has got, until the time of allocation of custody and exercise of parental responsibility, with each of the parents, any of its brothers/sisters,
- the personality, cultural education of the parents,
- whether and who of the parents is considered most suitable to offer to the child the opportunities to comply with the requirements of the society in a reasonable, as the court faces reasonableness, background,
- the child’s environment in the proposed habitual residence.
The above factors are considered of equal importance and each one has to be evaluated in conjunction to the others.
On the other hand, the court should not apply any elements that are based on the comparison of the parents’ welfare, or on the parents’ sex, language, religion, nationality and beliefs.
As far as the issue of liability for the break-up of the relationship (marriage or other) between parents, this element may be taken into account by the Court, in case that it is proven that the liable party’s conduct has got repercussions on the exercise of parental responsibility, in the context of disclosing such parent’s real personality and general attitude to the minor child as well. On the other hand, liability for the break-up of the relationship, as such, should not be a material element in the Court’s determination of the parent’s suitability for allocation of custody and exercise of parental responsibility.
Is a Greek Court going to take into consideration the child’s opinion as far as custody is concerned?
The Court has got to take into account, to the extent reasonably expected depending on the maturity of the child, the child’s own opinion regarding allocation of custody. Due to the fact, though, that children tend to be easily influenced in their opinion by unacceptable elements, facts and behaviors, elements that diverse to the aforementioned factors, as described under para. (4) above, Courts are often reserved in their judgments with respect to this factor. The Greek legislation provides for the interview of the minor child, further to the Court’s order, by a professional capable to evaluate the child’s personal circumstances, designated by the Court, following which the Court issues its judgment having taken into consideration the impact of the current state of living, as well as the advantages and disadvantages of future arrangements.
Departure of the child from its permanent or temporary residence – Abduction of the minor child – Judicial recourse
Since the custody of the minor child is included in parental responsibility, which is awarded by law in principle to both parents, at the child’s birth, any departure of the minor child until the age of sixteen (16) years, with one parent from its permanent or temporary residence, for another place, without the other parent’s consent, and with the intention of the departing parent to change the child’s permanent or temporary residence may be validly considered as child’s abduction, which gives rise to civil and criminal liability.
The same applies in case of allocation of custody to one parent, if the other parent decides to take the minor child away from its permanent or temporary residence.
Nevertheless, in case custody is not practically exercised by the parent alleging that abduction took place, although custody may have been awarded to him/her, then the charge / act of abduction is not sustained.
The international community has got an international mechanism in place that provides for State assistance to the return of the minor child to its home-State, in case of abduction.
Specifically, a designated authority for each State – signatory of the applicable international Convention (the 1980 Hague Convention) is competent for receiving an application of the parent who claims abduction, which is promptly forwarded to the corresponding authority of the state to which the child has been transferred. The competent Court of the State that has received the application has got the obligation, after receipt of the application, to issue an order for the return of the child to the State from which the minor child was taken away. The aim of the order is solely the return of the child to its original location, without taking into consideration whether the allocation of custody has been or is in the child’s best interest. Exceptionally, if there exist such adverse circumstances that may endanger the child’s physical or mental integrity, the court may not order the return of the child.
Rights of the parent not exercising custody on the minor child – Communication and illegal retention of the child
The parent who does not exercise custody, by Court judgment or the parents’ agreement, is entitled to communication with the minor child. Communication is just a right and whether it is exercised or not is at this parent’s discretion. Nonetheless, non-exercise of the right may result to amendments to the communication right, as the child grows up.
In specific, communication refers and aims at the minor child’s best interest, (a) in order that the child’s connection and close relationship with the parent requesting communication is maintained, despite the lack of custody, and (b) in order that the parent exercising the communication right is able to have direct knowledge of the child’s personality and mental development, as well as the child’s overall state.
In case the parents do not reach an agreement, the Court will adjudicate on the content and specific ways of communication, further to a corresponding application of the parent not exercising custody.
Communication may not be excluded, save in exceptional cases that causes serious danger to the child. The Court is obliged to set the specific frame of the communication right, by mentioning time and duration, frequency, main and, possibly, alternative ways of communication, as well as the particular conditions according to which communication should take place. In this respect, the court judgment may include provisions for the place of delivery and return of the child, determination of the parent responsible for the child’s transfer and liable for relevant costs. The Court may also order penalties, by means of imprisonment and payment of monies, for the case that the parent obliged, pursuant to the Court judgment, to co-operate for exercise of the communication right of the other parent, does not comply with such obligations.
In circumstances that the minor child resides at a place or State different than that of the parent exercising the communication rights, the Court may order that communication is exercised via skype connection at specific times and for a specific duration each time, that the child stays with this parent for a prolonged period over its school holidays, that alternative communication periods may be established, on prior notice to the other parent and within the frame ordered by the court, if the parent exercising the communication right is able to travel.
The parent exercising the communication right may be found to commit an act of illegal retention of the child, in case such parent does not abide to the agreement or Court judgment on communication, resulting in civil and criminal liability. This liability may arise as a result of deviating from the time schedule or the place in which communication may, pursuant to the agreement or the Court judgment, take place.
Amendment of the custody, parental responsibility and communication regime.
Since the law’s aim is to safeguard the child’s best interest, as above described, any material change in facts or in the child’s or in the parents’ needs affecting the child’s interests, may give rise to an amendment, either by agreement or by Court judgment, of the exercise of parental responsibility, custody and communication.