According to the law, the child is entitled to his two parents.
Parental authority
The parental authority is defined as a whole of rights and duties of the parents having for finality the interest of the child. It belongs to the father and to mother until the majority of the child to protect it in his safety, its health and its morality, to ensure its education and to allow its development, in the respect due to its person. The parents associate the child with the decisions which relate to it, according to his age and its degree of maturity « (Article 371-1 of the Civil code).
The two parents, married or not, are titular parental authority, if the child were recognized in the first year of his birth.
The parental authority means the equal rights and duties of the father and the mother in the education of the children.
The divorce does not undermine parental authority. The two parents, even separate, preserve the exercise of it.
The parental authority implies:
- to ensure education, lodging, the residence and the monitoring of the child,
- to make together the important decisions concerning health, the school orientation, the religious education and the change of residence,
- to inform itself reciprocally on the organization of the life (school life, sporting, cultural, medical care, holidays…),
- to allow the exchanges with the other relative in the respect of the framework of life of each one but also with the grandparents.
It ends:
- is in the majority of the child, it can even go beyond if the child is still with the load of the other relative,
- is by emancipation or marriage of the child,
- is by complete withdrawal or partial of the rights, ordered by the court.
In the event of separation of the parents, the judge with the family businesses is qualified on the methods of exercise of the parental authority and on the contribution and with the education of the child. He decides in the interest of the children that the parental authority will be exerted:
- by the two parents,
- by one of the parents.
The relative who does not profit from the exercise of the parental authority preserves the right of access and lodging and the right and the duty to supervise the maintenance and the education of the child.
The attribution of the residence of the newborn gives any custody charge, no preference or additional right compared to the other relative.
Forfeiture of the parental authority
It involves for one or the two parents the loss of all the rights and obligations with regard to the child. She is pronounced by a judge in the following cases:
- when the parents were condemned for crime or offence made against their children or with their children,
- because of ill treatment or defect of care which endangers health, the safety or the morality of the child,
- when the parents do not have any more a contact (even epistolary) with the child since more than one year.
Parental authority exerted by a third
The judge can, if the interest of the child requires it, entrust the child to a third family member or a close relation worthy of confidence. In this case, the parental authority continues to be exerted by the father and mother. One who sees oneself entrusting the child achieves all the acts of monitoring and education of the child.
The deprivation of the parental authority
Parental authority is private, the relative who did not recognize his child before its first birthday. “The parental authority could nevertheless be exerted jointly in the event of joint statement of the father and mother in front of the clerk as a chief of the Court of Bankruptcy or on decision of the judge to the family businesses” (Article 372 of the Civil code).
A relative can also be private exercise of the parental authority by decision of the courts for serious and exceptional reason.
Access rights and lodging
The law provides that this right is a principle because it makes it possible the child to have regular relations with his two parents. The fact that this right was never practiced or that the relative never saw the newborn does not prevent it from making a step near the judge with the family businesses of the Court of Bankruptcy of the place where remains the child.
The relative in whom the newborn does not reside has a right of access and lodging which can be to him refused only on serious grounds. In the majority of the cases, the right of access is usually every other weekend and the half of winter and summer holidays.
The titular relative of the right of access and lodging is not obliged to use of this right and can legally not present himself.
If the parents are of agreement, it is them which decide together days and visiting times and lodging. They can pass an agreement in writing which could be approved by the judge. In the event of dissension between the parents, it is the judge who fixes the conditions of the right of access.
Only serious reasons can encourage the judge to refuse a right of access to the relative.
The judge with the family businesses lays down the methods of right of access and lodging of one of the parents or the grandparents. This decision is essential immediately. In the event of voluntary and repeated preventions, the recalcitrant relative exposes himself to penal sanctions for the offence of “not representation of child”. The relative where the child resides has the absolute obligation to give the child to the other relative the dates and hours planned.
“The fact of unduly refusing to represent a minor with the person who has the right to claim it is punished one year of imprisonment and 15.000 euros fine” (Article 227-5 of the new penal code). It is an usher who can ensure the report of it. A police officer can also move and recall his obligations to your ex and establish an official report.
What are the grandparents' rights ?
The grandparents have a right of access and lodging of their grandchildren but also the right to exchange a correspondence with them and to take part in their education insofar as they do not replace the parents.
The father and mother cannot, except serious reason, to make obstacle with the relations between a child and his grandparents. If no agreement can intervene between the parts, the relations will be regulated by the judge with the family businesses.
Certain courts admit that the grandparents are not represented by a lawyer and the judge can be seized then by simple letter.
“The child has the right to maintain the personal relations with his ascending. Only serious reasons can make obstacle with this right”.
“If such is the interest of the child, the judge with the family businesses lays down the methods of the relations between the child and a third, relative or not” (Article 371-4 of the Civil code).
Alternate residence or single-parent residence
The alternate residence : the children are raised by the two parents and share their time in a way balanced between the two. They live one week with their father and the following week with their mother and so on. Alternation can have some 2 weeks periodicities, 1 month…
The law of March 4th, 2002 on the parental authority granted the judges with the family businesses the capacity to impose a residence or keeps alternate, in the name of “the superior interest of L " child”.
The judge cannot impose such a measurement if none the parents requires it. But, in the event of dissension between the parents, if one wishes an alternate residence and the other not, the judge will be able:
- to try to reconcile them,
- their to propose or enjoin a family mediation to them,
- to name a social investigator to allow to rule within sight of the results of the investigation,
- to order on a purely provisional basis for one 6 months maximum duration the alternate residence. At the end of the time, the judge will rule definitively on the residence of the child.
The alternate residence can function only so certain conditions are respected:
- agreement enters the parents,
- geographical proximity (the provided education for children can attend only one and even school),
- acceptance of each parent that the possible mother-in-law or the possible father-in-law takes part in an active way in education of the children.
The alternate residence is not synonymous with absence of alimony. The judge will rule according to the resources of the father and those of the mother.
Each relative can register the child on his vital card of Social security.
For the taxes, the children are famous being with the equal load of the one and other of the parents, who can declare them both and profit then from 0,25 additional share for each of the first two children and 0,5 share as from the third.
For the alimony: it is not deductible any more from the income tax for that which pours it; it is not taxable any more for that which receives it.
The parents will have to agree and to indicate to the Allowance office Family which will perceive the allowances or to divide them of a common agreement.
Each parent can make register the child on his own passport and in the case of the alternate residence the two addresses of the child must be registered on his passport.
The single-parent residence
The child is raised by a principal relative in whom it resides mainly or completely and which assumes its education. The child can profit from different sound relative in the form of short visits or from holidays.
“The fact, for a person who transfers her residence in another place, whereas her children usually resides at it, not to notify its change of residence, within one month as from this change, with those which can exert with regard to the children a right of access or lodging under the terms of a judgment or a judicially approved convention, is punished six months of prison and 7.500 euros fine” (Article 227-6 of the new penal code).
Alimony
“Each parent contributes to the maintenance and the education of the children to proportion of its resources, of those of the other relative, as well as needs for the child. This obligation automatically does not cease when the child is major” (Article 371-2 of the Civil code). This obligation continues until the child acquired his financial autonomy, in particular until the end of its studies, if it is in looking for a job or in impossibility of working because of a handicap. The relative who lodges the child is in the obligation to inform the other relative as from the moment when the child ceases being with his load under penalty of pouring damages with the debtor.
The child is not considered any more with load when it Marie or that it perceives incomes which to allow him to remain with its needs.
The fact of lodging his/her child during the holidays does not involve reduction in the amount of the pension because it is contractual.
The case of the children whose parents are not married
The relative can ask for the fixing of an alimony which will be poured by the other relative, provided that filiations are established with regard to this one. The pension is versed to the relative in whom the child with his main home. If filiations are not established with regard to the second relative, the other relative or the child can claim subsidies in front of the Court of Bankruptcy.
The amount of the pension is fixed by the judge according to the resources of the relative who owes it and of the needs for the child according to his age, his health, the studies which it continues… The pension is always revisable according to the variation of the needs or the resources of the parts. The situations of one or the other of ex-united can change and the sums can be revised with the rise, with the fall even removed. Any modification on the amount of the pension can be operated only by the judge with the family businesses.
The fact that the alimony is not versed is not an excuse to refuse to give the child for the exercise of the right of access and lodging and reciprocally.
The voluntary defect of payment of the alimony is liable 2 years of imprisonment and 15.000 euros fine.
Abandonment of family and non-maintenance of children
The fact of not paying the alimony voluntarily for more than 2 months is constitutive of the offence of abandonment of family which can be punished of
2 years of prison and of a fine of 15.000 euros. “The fact, by the father or the mother, to withdraw itself, without reason legitimates, with its legal requirements at the point compromise health, safety, the morality or the education of his/her minor is punished two years of prison and of 30.000 euros fine” (Article 227-17 of the new civil code).
The creditor must carry felt sorry for abandonment of family and make quote the debtor of the pension in front of the magistrates' court, by way of direct quotation, with the assistance of a lawyer.
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