Hello,
I've got your newsletter and I appreciate very much your
website and blog., full of very usefull informations. My name is F, I'm Italian and I'm married with a Romanian R since 2009 but we are together since 2007. R had a previous relation (not married) and
she has a boy M. (now 10 years old), M. is in Romania with the father. In 2004 my wife
decided to go abroad, they sign in 2004 an agreement,… and since this agreement
the situation became a disaster. The father thinks that M. was sold to him and he is the "Owner".
Separation between parents are never easy and it's never 100
% the fault of one parent, fault are usually shared. […] so we started a
procedure in 2009 because the father was always saying "unde scrie",
refusing pratically everything, my wife wanted to do with the kid (e.g. to take
the child abroad with her on Holiday). He refused, I have tons of E-mails (in
fact 4 years), he never refused to let the child with the mother in Romania,
but abroad it was not possible.
I also tried to explain him that his revenge has nothing to
do with M., and one day M. will open his eyes, I told him that today (2
years ago) M. is afraid of you but tomorrow
he will hate you, because of what you are doing to him, but it was useless, and
as I have read in a document "Este cunoscut faptul
că "puterea absolută corupe" în exact acelaşi sens custodia
unică favorizează apariţia fenomenelor de alienare parentală în
condiţiile în care părintele custodian, simte că are putere abslută asupra
minorului putând să restricţioneze complet, dacă vrea, accesul celuilalt
părinte la copil"
After 2 years in front of the tribunal my wife got the
passport for M., got the right for M. to come to visit us, we went last year in Italy
for the first time (he agree because the decision was not final yet),… small
successes, but now impossible to go outside of the country of residence of
my wife so if we want to go on holiday let say in Spain it's not possible
because of the "unde scrie" so we are blocked in Romania or in our
country, and he refuse to discuss / agree to sign a document for going to Spain
for instance, because he was hurted by the tribunal, we had the
"tupeu" to start a procedure against him (this is his point of view,
when we started the procedure for M.'s
custody)
[…] Now fortunately the new Civil Code is there and we
started a new procedure for the "reinstaurare custodia
comuna" (alone, because I don't trust anyone in Cluj, maybe it's
crazy but I prefer that my wife is in front of the judge instead of having a
lawyer who one day will disappear for I don't know which reason, an is not
aware of the new legislation), we had a discussion with a lawyer in Bucharest
far from Cluj, we went there (so you see it's possible to take important
decisions even if you are far away, a parent should never be exclude because of
the distance, because he / she has still Obligations and Rights) the lawyer
prepared for us the document for the tribunal, we don't know if we are going to
obtain something, but we are keep going on for M..
The father already reply with art.398 and motivation are :
- parintii sunt
domiciliati in state diferite
- intre parinti
subzista neintelegeri majore.
For me none of them are valid, in both cases you can not
invoke art.398, now it depends what the judge will say. I would like to know if
you are interested by THE STORY J I
have all the documentation and I can explain my point of vue which I agree
could not be always objective.
Regards, F.
ANSWER:
Will try still to comment on your mail:
“he never refused to let the child with the mother in
Romania, but abroad it was not possible” … this is already a good
start. Many non-residential fathers are in much worst situation. Despite being
in the same country they cannot access their kid for months or even years. So I
really think this is not that dramatic situation. It seems that the father does
have some basic respect for the right of the mother to interact with the kid.
Unfortunately (and the guy seems pretty aware of that) exiting the country is a
very risky situation. This is not rare the case when a parent takes the kid out
for a so called “touristic activity” and never returns. Not that we want to
suggest you & your wife will intend to do so, but, this cases of
“international kidnapping” (rapire internationala de minori) are quite frequent.
This might be the reason why the residential parent refuses the exit from the
country. Simply because he is really afraid there is a risk. There are
some ideas in the proposals for the improved Law 272/2004 in which the law will
give some additional guarantees that the person who takes the kid out of the
country for a limited trip, does return the kid. E.g. putting some 10,000 eur
into an account at the Child Protection who will be cashed by the state in case
the child is not returned until the due date. But this legislation is not yet
in application. What you need to do, and seems that you did it, is to open
another trial and to be very specific that you want to travel with the kid in
X, Y and Z country during the program that is allowed by the judge. The
Romanian justice is very formal and unless you are very specific with regard to
what you ask, indeed you could end-up in the situation that you cannot do
anything else than what is stipulated in the court order.
“we dont believe in lawyers” – you really need
a lawyer because there are many procedural aspects that you are not able to
control. Not all lawyers are well prepared but Cluj is not that small town and
not all lawyers are un professional. We could offer you few names of the
lawyers that are on our newletter list. Without being able to certify them we
think that, at least, they are exposed to the best practices we publish. If you
and your wife prepared you will be able to effectively control all the things
that are being written in the documents there. And yes you can ask the lawyer
that all the claims to be made also in written so that you can control the
argumentation. This is always a better approach than to trust solely the
lawyer, especially as you are more eager to study the lot of documentation that
we published and select the right arguments (than a lawyer might have the time
to do it)
“joint or sole custody” - the mother has
all the right to apply for joint custody and to obtain it. The arguments that
the father opposed are wrong. This is not “motive temeinice”. The 4
years of letters between the two shows that you can actually collaborate
although there is a level of disagreement between the two. Also the fact that
you took the child out of the country and then returned it is also in the favor
of the collaboration. E.g. to Bucharest. We do not recommend that you ask the
residence of the child to move from Romania to Italy because this would indeed
seem as a huge potential for conflict. The joint custody does stimulate the
parents to collaborate more and to make them more flexible so it is in the best
interests of the child. Find a good lawyers, use the documentation we offered
on the web site and you have really big chances to win. If you are afraid that
there are some “influences” there might be a procedure to move the trial in
another town.
“the pension problem” - we have no more
help to offer here. You have the guidance we offered in the wikimanuals we
created here: http://ro.wikibooks.org/wiki/Utilizator:CustodieMinori
. Print this and use this with the jury house. If you get the joint custody, as
a separate, request you may ask for the kid to be served with goods and
services by you rather than paying money. But really the distance might still
not be in your favor. And also it might not be strategically right to put the
two (custody and pension) in ones because the judge might believe your drive is
not the best interest of the kid but the desire to reduce the pension
One final recommendation. Try to be as polite and as non
emotional with the residential father. Try to make and give all signs possible
to him that this is not aimed to attack him and joint custody is the normal way
the kids should be raised. Do not threaten him that if mother will get joint
custody you will pay back, etc. Instead assure that you will not try to change
residence nor to create him troubles when he will want to exit the country,
etc. This escalation of the conflict does not help.
“the 25% is a false problem” -- in our
point of view the time the kid spends with the non-residential parent derives
from the type of custody and not the opposite way. Even in case of the
transnational families the jury should try to give to the non-residential
parent time close to the 25% guidance. Because the kid cannot spend the
weekends with the non-residential parent he/she should spend more time in the
holidays. In case of the transnational families it is our deep belief that in
order to strengthen the emotional links the kid should spend with the non
residential parent more than half of the summer holiday for example (e.g. 8-10
weeks) and probably also more time in the Christmas and Easter time than with
the residential parent. This is not to penalize the residential parent but simply
in order to secure that the interest of the kid to have a meaningful
relationship with both parents is protected.
We can also suggest the mediation. In case you want, we can
offer you a name of a good mediator based in Cluj, who might be able to assist
to convey the message to the parent in a less aggressive way.
Hope this is helpful
The ARPCC team
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