Parental authority

In French Droit, the parental authority is a whole of rights but also of duties, that the parents have with regard to their minors. In 1970, it replaced, in French right, the parental rights which ensured the exclusiveness in the authority of the father on all the family, including the mother. The parental authority means the equal rights and duties of the father and the mother in the education of the children.

Presentation

Parental authority, when she is recognized never becomes for as much an absolute and unlimited right: it stops where start the Droits of the Child, in particular the introduction and articles 12 to 14:

Any action involving the child must be made in his interest (superior interest of the child).

Article 12: “The States left guarantee to the child who is capable of understanding the right to freely express his opinion on any question interesting it For this purpose, one will give in particular to the child the being possibility heard in any legal procedure or administrative interesting it, either directly, or via a representative or of an adapted organization, in a way compatible with the procedure rules of the national legislation. ”

Article 13: Freedom of expression and of information, “the child is entitled to freedom of expression. This right includes/understands freedom to seek, receive and spread information and ideas of any species, without consideration of borders, in an oral, written, printed or artistic form, or by any other means of the choice of the child. ”

Article 14: Freedom of thought, of conscience and religion

Field

The parental authority has course in the relations relative - child in hot line. Thus in theory of the parental authority on the children of joint sound. The parental authority thus falls only to the father and to mother. There exists here, of the divergences which come from the differences in situation:

child (biological or Adoption) raised by two people living together.
child (biological or Adoption) raised by two people living separately.

The exercise of the parental authority gathers a whole series of obligations weighing on the parents. It implies in particular:

to ensure the 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, and this, even when the parents live separate or divorced,
to inform itself reciprocally, with a view to an essential communication between the parents, 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.

History

The parental authority if it seems natural in our current society is however not a recent creation and it is absent from many current legal systems.

Disappearance of the parental rights

The introduction of the parental authority constitutes the proof of the equalization of the duties of husband and of the wife.

Since the Civil code known as Code Napoleon the wife had in the family a row hardly more enviable than his/her children, comparable to minor whose financial independence was prone to the “household head”.

This concept disappears in France in 1970: the law stipulates that from now on “the two husbands ensure together the moral and material direction of the family”: the parental authority replaces the parental rights.

Actual position: towards the equality of the husbands in their relations with the children.

When the parents live separate or divorced, the question of the residence of the children arises. The fights between parents separated to monopolize the children and to make use of it like means from pressure or oppression on the other relative can only harm to the children.

However, it is the superior interest of the child who must precede, and judges it with the family businesses always takes care there. In particular, the opinion of the child of more than 13 years can be collected in the procedures relating to it. Justice also takes care, except exceptional circumstances, not to separate the brothers and sisters…

In addition, more and more of specialists recommend the system of the alternate Résidence: the children live one week with their father, then the following week with their mother, and so on. Alternation can also have some 2 weeks periodicities, 1 month,… It adapts according to the interest of the children and the possibilities of the parents. This system was set up by the law of March 4th, 2002 relating to the parental authority.

There exist many reports/ratios which show the utility for children to be educated by their two parents and not only by their mother:

better academic success
less risk of depression and suicide
more chance to make a success of a future life of couple

Here a report/ratio which details all the advantages of the alternate Résidence: Cogency of the residence alternated for the children whose parents are separate

However, everyone does not agree on the benefits of the alternate Résidence. According to other specialists, the law of 2002 on the parental authority, will be more a " law made for the adultes" , that in the interest of the child. Indeed:

System of the alternated residence always not adapted to the young children, who will be destabilized by the change of residence each week, or two weeks,
Passage of the successive authority from one relative to another, each week, is likely to make lose their authority on the child with the two parents,
Risque of loss of confidence of the child towards the adults, and in particular towards the mother, whom the child will make often responsible for separation.

Disappearance of the parental authority

However, the even recognized parental authority is not eternal.

a person can give up it by giving up his/her child.
in the majority of the child the parental authority disappears.
there exist legal cases of disappearance of the parental authority: by the forfeiture of the parental authority

Divorce and parental authority

Enough frequently, the professionals notes that the relative who does not obtain the main home of the child, is limited in the exercise of the prerogatives (rights and obligations) which rise from its parental authority. The guard term is still often used to include the parental responsibilities, but to preserve the parental authority and the responsibilities for the two parents, this term was made obsolete by the law n° 87-570 of July 22nd, 1987 of Claude Malhuret.

The divorce indeed, does not make disappear the parental authority. Quite to the contrary, the two parents, even separate, preserve the exercise of it. It is only in extreme cases, for example when there are ill treatments or if one of the parents ignores the child completely, that the Juge with the family businesses can decide to déchoir one of the parents of its parental authority and to exclusively allot it to the other relative.

Control parental authority

The current legislations, in the Western countries in particular, are increasingly protective for the children. He was established little by little audit processes of the parental authority which can be implemented when the parents are not capable to only deal with their children. Measurements can be taken by the courts going of a support for the parents, until the total suppression of the parental authority. Thus, the ill treatments on the child can lead to a forfeiture of the rights of the parents, this one can be temporary (placement of the children by the social services) or final (adoption of the children by another family).

educational welfare: To look further into, see the article Educational welfare .
the delegation: at the request of the parents, or when they ignored the child during a certain time, the Juge of the children can temporarily delegate whole or part of the parental authority to another person, an approved establishment or a social service of assistance to childhood.
the child entrusted to a third: there still, it is about a temporary measure which does not deprive the parents of the parental authority but which aims at entrusting the child to a person who will ensure during a time her education and her monitoring. The third is rather in load of its daily life but the parents preserve as for them the right to make the great decisions relating to the child.

Forfeiture of the parental authority

The forfeiture of the parental authority involves in theory the loss for one or the two parents of all the rights and obligations with regard to the child. It is about a measurement which can be provisional or, more rarely, final. It can be marked by a judge in the following cases:

when the parents were condemned for a serious offense or a Crime made on the person of their child. This decision is not regarded by the judge a complement of sorrow, but as a protection measure of the child.
when the parents were condemned as joint author or accessory to a serious offense or a Crime made by their child.
when, apart from any penal sanction, the parents are responsible for ill treatment or a defect of care endangering safety, the health 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.

In the event of Death, the surviving spouse preserves the parental authority.

If the two parents die, a Tutelle is opened and the board of guardians as well as the tutor are invested of this authority.

References

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