1.How is it exercised normally?

First of all, by the term, we mean the functional right that parents have to take care of their minor child (to represent them in every matter and manage their property, if any). The law stipulates that for children born within marriage (or duly recognized), parental responsibility is exercised jointly by both parents, requiring the participation of both in decision-making. For this reason, an agreement for one parent to waive their right to exercise parental responsibility beforehand is invalid, while conversely, certain actions can be allocated to one parent if it serves the child’s best interests. It is important to emphasize that in case of parental disagreement:

• If the issue is so crucial, the decision to carry out or not the action is determined by the Single-Member Court of First Instance of the place of residence where either of the two parents may appeal. The particular decision takes into account the best interests of the child.
• If it is an urgent action (i.e., cannot be postponed without text), such action can be undertaken by one parent alone.

2.Right or function?

It is not a right/obligation in the classical sense. We use the term function because the purpose served by the right is primarily the best interests of the child since all actions of the parents are (or should be) directed towards that (the right cannot be transferred to another, the possibility of exercising it does not expire as long as the child is still a minor). Also characteristic of the right is its absolute nature, in the sense that it is protected against any third party attempting to violate it (thus also offending the child themselves, from whom parents can seek judicial protection on their behalf). All of the above are more perceptible through the mandatory law governing parental responsibility and further reinforcing legal security.

3.And if it is not exercised properly?

In this case, parental responsibility may either be removed (=the parent remains the holder of the right and may regain it in the future, but currently does not exercise it) or cease (=the parent permanently loses parental responsibility, which will be exercised thereafter by the other parent/someone else appointed). To reach this point:

• The parent at fault fails to comply with court decisions/agreements with the other spouse regarding the child.
• Disturbs (even attempts to disturb) the emotional relationships of the child with the other parent and their family.
• Obstructs the communication of the child with the non-resident parent (and breaches any agreement made with the other parent).
• Behaves poorly or neglects entirely the right of communication they have with the child.
• Unjustifiably refuses to pay the court-ordered child support or that resulting from a parental agreement.
• Has been convicted for crimes of domestic violence/encroachment of sexual freedom directed against the child.

4.Exercising parental responsibility does not mean being its holder.

The distinction between the holder of the right to parental responsibility and the one who actually exercises the right (=the former does not necessarily imply the latter) is crucial. Therefore, when we mention that parental responsibility has been removed from one parent, it simply means that they no longer enjoy certain powers of the right-function, yet they formally remain the holder of the right and may be allowed to exercise it again in the future (e.g., if the court decision terminating parental responsibility is revoked). Conversely, not being one of the parents holding parental responsibility is quite serious, as it means that the right has been permanently taken away, and they cannot regain the exercise of it (e.g., if the parent is convicted with finality for a crime committed against the child).

5.The Joint Custody According to Law 4800/2021

With this law, some modifications were introduced in family law, specifically regarding how parental responsibility is determined in cases of parental disagreement. Firstly, it is stipulated that the court intervenes only if the parents’ efforts for an amicable solution fail. The major innovation was in Article 1514 of the Civil Code, which now specifies that parental responsibility for the child is divided into 3 phases:

• Parents can establish different parental responsibilities from what the law dictates through a written agreement (private agreement) with a definite date (thus, an agreement is made between them valid for at least 2 years, automatically extended if the parents do not oppose).
• If parental responsibility cannot be exercised through agreement or in general, the way is open for recourse to court mediation (except in cases of domestic violence).

It is worth noting that regarding the right of communication of the non-resident parent with the child, it is now established at 1/3 of the total time (e.g., on weekdays), unless serious reasons exist to reduce this time, or if the parent exercising the communication right requests less time.

6.Distribution of Parental Responsibility in Case of Disagreement

If parents find themselves in disagreement (e.g., one of them no longer resides in the family home), both continue to exercise parental responsibility jointly unless it has been removed from either of them. Additionally, the parent with whom the child usually resides can usually undertake usual/emergency actions on behalf of both parents after informing the other parent if necessary (e.g., for a significant medical intervention). However, there is a category of issues for which the validity requires agreement from both parents:

• The child’s name.
• Religion
• Health matters (of an urgent nature, not routine interventions)
• Education matters (necessary for the child’s future)
• Changing the child’s residence (especially from the perspective of the other parent with whom the child does not reside)

For the above issues, a joint decision of both parents is required. If agreement is not possible, then either one parent decides alone (in the case that parental responsibility has been removed from the other parent) or the court decides with a judicial decision that determines parental responsibility and its limits.

7.When is parental responsibility assigned to a third party?

During the distribution of parental responsibility, the court has several options:

• Either to allow only one spouse to exercise parental responsibility (if the other has been disqualified from exercising it)
• Or to allow closer relatives to exercise parental responsibility (since both spouses have been disqualified from it)
• Or mixed solutions can be used (such as equally dividing parental responsibility between both spouses either in time periods or in specific actions each spouse will undertake)
• Or if the above solutions are not sufficient, to appoint a trustee to exercise parental responsibility for the child (this can be an individual, a structure, or a hosting institution)

It is important to emphasize that according to the new family law, spouses must first exhaust their efforts to reach an agreement and then resort to court. It is always crucial to consider the child’s best interests, and the child’s opinion may be heard in court if necessary.

8.What happens with the surname of the child?

Here a distinction needs to be made:

• If the child is born within marriage, the parents with an irrevocable declaration given before the marriage (either to a notary public or to the competent officer where the marriage will take place).
• With the above declaration, the surname is determined for all children (even subsequent ones) of the parents and may include either the father’s surname or the mother’s surname or both together (however, in that case, it must be specified which surname comes first, otherwise the declaration is void).

If the child is born out of wedlock, then:

• He/she will have the surname of his/her mother if there is no father/is no recognition of the child.
• He/she will have the surname of the mother’s spouse who is not the child’s legal father (thus, the spouse must, through a notarial document, give his surname to the child only if the mother agrees).

If the child is recognized later by his/her father, then:

• Within 1 year from the recognition, he/she can add the father’s surname to his/her own by submitting a corresponding declaration to the competent registrar.
• In addition to the child, the addition of the paternal surname can be requested by the parents as well as the child’s guardian (if any), provided that the child is a minor/incapacitated for litigation.

9.Parent-child relationships on a personal level

In this field, we could include:

• The mutual obligation of parents and children for support and respect between them (which, however, is not legally enforceable and leads only to indirect consequences). This should be judged specifically based on the prevailing social perceptions in a place or family and does not have a predetermined content.
• The obligation of the child to aid his/her parents for household needs, as well as the profession of his/her parents. For this reason, it is limited according to the measure of care that the child shows in his/her own affairs, and accordingly with the resources he/she has, depending on his/her age, in order not to be overly burdened. The child has the above obligation only if he/she is supported by his/her parents (e.g., living in the same house with them, they have rented a property for him/her, they provide him/her with food in another way), and not if he/she is supported by his/her own means.

10.Parent-child relationships on a property level

Parents have the right (and duty) to manage the property of their minor child, except for those property elements that belong personally to the minor (e.g., the child’s allowance). However, in the case of property that passes to the minor due to inheritance from a relative:

• If a condition is set in the will prohibiting the parents from managing this property, then the parents do not have the authority to manage it.
• The parents must follow a specific method of managing this property if something similar is mentioned in the will (and cannot deviate).
• In addition, parents are responsible for representing their child in any matter (judicial or extrajudicial) until the child reaches full legal capacity (upon reaching 18 years of age), as legal representatives of the child.

Finally, parents also have some obligations regarding how they manage their child’s property:

1. They are prohibited from making donations from the child’s property.
2. They are required to place the child’s money in a safe place and for proper use, unless it is necessary to meet expenses.
3. They need judicial permission to undertake certain property acts on behalf of the child (e.g., to sell a property owned by the child). If these acts are undertaken without the appropriate permission, they are void.
4. They are obligated to use the child’s income (if any) for the child’s needs, education, and general living. In case of need, they can use it to cover family needs.

Next to the client and his needs.

Athina Kondogianni-Lawyer

 

The above-mentioned do not constitute legal advice, and no responsibility is taken for them. For more information, please contact us.