PUBLICATIONS
Parental Responsibility and Mediation
Parental Responsibility in Cyprus is the responsibility of the parents over the minor child. [1] When exercising parental responsibility, parents should exhibit the same care they exhibit in conducting their own affairs. [2]
Parental Responsibility is a duty but also a right of the parents and is exercised jointly. However, in the case of ordinary acts of parental responsibility or acts of an urgent nature, parental responsibility may only be exercised by one parent. [3] Any decision of the parents regarding the exercise of parental responsibility should be in the best interests of the child. [4]
The interests of the child means the physical, material, spiritual, mental, moral and in general any type of interest.
According to the judgement of Ioannidis v. Ioannidis [5] in the process of parental responsibility applications, the element of confrontation between the parents should be absent. It is an inquisitorial process the ultimate goal of which is to better serve the well-being and interests of the child.
The Court, when called upon to entrust Parental Responsibility to one of the two parents, must show respect to the equality between the parents and not discriminate on the basis of sex, language, religion, belief, nationality, social origin or wealth. [6]
What Parental Responsibility Includes
Parental responsibility includes: [7]
“The legal custody, the parental care over the person, the physical custody, the communication and representation of the minor, the management of his/her property and any matter concerning the person and the property of a minor”
We note that parental care includes both the legal custody and physical custody [8] of the child and therefore separation is extremely difficult.
Parental responsibility includes the following: [9]
- Parental Care
Regarding parental care, this is divided in the following: [10]
- The upbringing and supervision of the children.
- The education and training of the children.
- The determination of their place of residence.
Custody includes the legal custody as well as physical custody of the minor. Legal custody relates essentially to the care of the minor. Physical Custody concerns the place of residence of the minor as mentioned above.
Legal custody (guardianship) is with the parent who has the parental care of the minor.
The Court usually assigns legal custody along with physical custody mentioning the place of residency of the child and states that the other aspects are exercised by both parents. (e.g. identity card, passport, school, surgeries, health).
- Identification of the name
Parents can identify their child’s surname with a joint written statement. The surname, which must be the same for all children can be the surname of either of the parents, or it can be a combination of their surnames. In case they fail to state their child’s surname, then it will take the father’s surname.
When a child was born before the marriage of its parents, it takes the mother’s surname. [11]
- The administration of the child’s property.
Regarding the administration of the child’s property, with the permission of the Court, the parents may use the child’s property and income, which they can administer for the maintenance, education and general needs of the child. [12]
Parents are not allowed to make payments from the child’s property. [13] Also, parents cannot, without the permission of the Court, carry out acts for which the Commissioner needs permission. [14] Acts that need permission are the following, provided that the Court determines that they are necessary for the interests of the minor: [15]
“(a) To sell, mortgage, encumber, exchange or in any way alienate the property of a minor
(b) to lease the minor’s immovable property for a period exceeding five years
(c) to purchase real estate on behalf of the minor
(d) invest money that belong to the minor
(e) settle lawsuits or claims for or against the minor. “
- Representation of the child in any case or legal act which concerns the person or property of the child.
When does the Court intervene in cases of parental responsibility?
The (1) assignment and (2) the way that parental responsibility is exercised can be ordered by the Court [16] and the opinion of the minor is taken into account – depending on their maturity and perception. This is done without any discrimination based on gender, language, religion, belief, nationality, national or social origin or wealth. [18]
Before a decision of the Family Court in relation to a final decree (not temporary) which concerns parental responsibility (e.g. communication) it is necessary to have a report of an official from the Social Welfare Services. The report must provide the court with the information it needs to help the court reach its decision.
Relevant is Rule 5 of the Rules of Custody of Minors and Prodigals [19] which states that the Court appoints a Social Welfare Officer as soon as possible at the District where the applicant or the minor resides. The Officer has a duty to investigate all the parameters in order to safeguard the interests of the minor and to submit a relevant report to the Court.
It is also the duty of the Welfare Officer: [20]
(a) to conduct inquiries into matters for which there is a claim which may assist the Court in relation to the applicant’s suitability to become a guardian; and
(b) interview in person (or through another official) the applicant or the person referred to in the application or the person to whom notification of the application is required under Regulation 11(3) (these persons are the parents or any person which the Court decides);
If the Officer’s report does not contain the reasons for which he/she arrives to a conclusion – that is, he/she does not state the reasons for suggesting that the father/mother should have contact with the children – then the report does not provide the necessary information to assist the Court. [21]
The result is that, if the Court bases its decision on the conclusions of the report and such conclusions have not emerged from the Court’s own interview with the children, the Court’s decision is considered invalid.
The degree of maturity of a minor is confirmed through the conversation of the Court with the minor. There are no established rules governing the conduct of the conversation, but there are principles that must be followed.
Specifically, and based on the decision of Konstantinos v. Xiouros [22] (Appeal No. 4/2015) dated 14/01/2020 in the court decision which regulates the issue of parental responsibility, the court must:
… state clearly both the judgment of the court as to the substance in that the specific regulation promotes the best interests of the child and the factual facts supporting that judgment. If this is not the case, the decision of the court on the substance has no legal basis, i.e. it is insufficiently reasoned.
The determination of the minor’s maturity is assessed by the Court.
The legal framework for the intervention of the Court is provided by articles 7 and 14 of the Law which state that: [23]
«7. If the parents disagree in the exercise of parental responsibility and the best interests of the child require that a decision is taken, the Court shall decide, at the request of either parent. “
14(1). In the event of divorce or annulment of the marriage and provided that both parents live, the exercise of parental responsibility is regulated by the Court. “
That is, parental responsibility can be decided by the Court where (1) the parents disagree or (2) in the event of divorce or marriage annulment. According to article 15 of the Law, the provisions of article 14 also apply in case there is an interruption in the cohabitation of the spouses – that is, their separation. [24]
What Decrees can the Court Issue?
FIRST DECREE: The first decree that the Court can issue is the assignment of parental care of the Child. This type of decree addresses the issues discussed above and concerns parental care. This is the assignment of parental responsibility.
We note that in cases of mediation, the assignment and removal of parental responsibility is the only issue in which the mediator cannot intervene.[25]
According to Article 14(2), in the event of divorce, separation or annulment of marriage, the Court may entrust parental responsibility to one or both parents (if they so agree). [26]
SECOND DECREE: The Second Decree is that of Physical Custody of the minor. In such a case, the Court also determines the place of residence of the child. [27]
We note that it is possible for the Court to issue a decree of physical custody, care, and parental responsibility of a minor (i.e. the First with the Second Decree).
THIRD DECREE: The third decree that the Court can issue is that of personal communication with the child by the parent who does not have the physical custody of the child.
According to Article 17, the parent with whom the child does not reside reserves the right to personal communication with the child [28] and in case of disagreement over the exercise of this right, the Court will decide. [29]
In contrast with parental responsibility, which is a “duty and a right” of the parents, the personal communication of a parent with a child who does not live with him/her, is a “right” -not an obligation- and it is regulated by the Court when there is a dispute over its exercise. [30]
That is, it is not possible for the parent who has the physical custody to apply to the court so that the court orders the other parent to communicate with the children. According to V. Vathrakokilis in the book “The New Family Law:
The right of communication is not obligatory and consequently the parent has no legal obligation to communicate with the child. After all, the establishment of such a legal obligation presupposes a corresponding right of the child to communicate with his parent, which, however, is not a right stated in the law. Therefore, there is no legal claim claim against the other parent, and s/he cannot be forced into communication with the child.
An application for communication is filed by a separate application to the court under Article 17. Within this application, an interim injunction may be filed as well.
FOURTH DECREE: Stop-list. In case there is a risk that one parent will leave the Republic permanently together with the minor, the other parent may apply to the Court for a stop-list decree. This decree prohibits the minor child from leaving the Republic without the consent of both parents, or, in case they disagree, the leave of the court may be required.
Such an order may be issued directly at the request of a party after the dispute or it may form part of the applications for the decrees mentioned above.
The stop list process may be agreed during mediation if the parties so agree.
Criteria Taken into Account
The criteria taken into account by the Court are first and foremost the best interests of the child. The child’s relationship to the parents and siblings and any parental agreements for the custody and administration of the child’s property are also taken into account. [31]
The Court decides on the matters of Parental Responsibility based on the interests of the minor child and does not aim at imposing sanctions or holding any of the parents responsible for misconduct.
Mediation and Parental Responsibility
According to the provisions of Law 62(I)/2019 on Mediation in Family Disputes, any family dispute related to the institution of the family can be resolved through mediation. However, cases of removal or assignment of parental responsibility are excluded.
In other words, we consider that issues related to the legal custody of the child cannot be part of the family mediation process. Only the communication with the parents can be mediated.
This makes sense because in matters relating to the removal or assignment of parental responsibility a welfare officer is involved and the court interviews the minor.
For matters which are related to the removal or assignment of parental responsibility, mediation is possible. An example is the communication with the child.
This is made clear by the obligations of the mediator which are mentioned in article 10 of the abovementioned Law. Specifically, the mediator: [32]
«ζ. in the event that the dispute concerns or affects the child in whole or in part, shows particular care for the welfare and best interests of the child, encourages parents to focus on the child’s needs and reminds them of their primary responsibility for the child’s well-being, as well as the need to inform the child and take his or her point of view into account
η. in the event that the dispute concerns or affects partially or generally a child, if it is necessary and after consulting with both parties, listens to the views of the child and takes them into account according to the age and degree of maturity of the child. ”
The above information does not constitute legal advice.
[1] Law on Parent-Child Relationships, a 5 (1) (a)
[2] Law on Parent-Child Relations, a 13 (1)
[3] Law on Parent-Child Relations, a 8
[4] Law on Parent-Child Relations, a 6 (1)
[5] Ioannidis v. Ioannidis, (2002) 1 Α.Α.Δ. 1446
[6] Law on Parent-Child Relationships, a 6 (2) (b)
[7] Family Courts Rules of Procedure of 1990 (2/1990), a 2
[8] Law on Parent-Child Relationships, a 9 (1)
[9] Law on Parent-Child Relationships, a 5 (1) (b)
[10] Law on Parent-Child Relationships, a 9 (1)
[11] Law on Parent-Child Relations, a 4 (1) (a)
[12] Law on Parent-Child Relations, a 10
[13] Law on Parent-Child Relations, a 11
[14] Law on Parent-Child Relations, a 12
[15] Law on Parent-Child Relations, a 26 (1) and 26 (3)
[16] Law on Parent-Child Relations, a 6 (2) (a)
[17] Law on Parent-Child Relations, a 6 (2) (a)
[18] Law on Parent-Child Relations, a 6 (2) (b)
[19] The Procedural Regulation on Custody of Minors and Prodigals, L.24 / 1936, a 5 (1)
[20] The Procedural Regulation on Custody of Minors and Prodigals, L.24 / 1936, a 5 (1) (a) and (b)
[21] Konstantinou v. Xiourou, Appeal No. 4/2015, dated 14/01/2020
[22] Konstantinou v. Xiourou, Appeal No. 4/2015, dated 14/01/2020
[23] Law on Parent-Child Relations, a 7
[24] Law on Parent-Child Relations, a 14
[25] Mediation in Family Disputes of 2019 (Law 62(I)/2019), a 2
[26] Law on Parent-Child Relations, a 14 (2)
[27] Law on Parent-Child Relations, a 14 (2)
[28] Law on Parent-Child Relationships, a 17 (1)
[29] Law on Parent-Child Relationships, a 17 (2)
[30] Law on Parent-Child Relations, a 17
[31] Law on Parent-Child Relationships, a 14 (3)
[32] Mediation in Family Disputes Law of 2019, L.62(I)/2019, a 10 (2) (g) and (h)
