marți, 26 martie 2013

Poate un paritne necustodian stabilit in strainatate sa ceara reinstaurarea custodiei comune desi este la distanta fata de copil ?


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.


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: . 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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