sâmbătă, 2 martie 2013

Survey by figlipersempre.com

-----Original Message-----
Sent: Thursday, February 28, 2013 5:14 PM
To: contact@arpcc.ro
Subject: survey

For planning our presentation in European parliament we need some data from different countries.
Could you answer about Romania?
We need to know in percentage: how many joint custodies, mothernal custodies, father custodies are issued from romanian judges.
In case of joint custody how many (percentage) children can spend equal time with both the parents.
About other cases, on average how many time do the children spend with parent 1 and how many with parent 2?
F:E: In italy alternating custody is about 1-2 %; in the other situations yhe child spends 83% of his time with parent 1 and 17% with parent 2.
Thanks in advance.

-----Original Message-----
From: contact@arpcc.ro
Sent: Saturday, March 02, 2013 7:49 PM
To: 'info@figlipersempre.com'
Subject: RE: survey

how many joint custodies you have in Romania?
Before 01.10.2011 (Reform of the Civil Code) we had zero joint custodies. The old civil code and the family code imposed unique custody. In theory both parents had the same chances to get the custody. In reality this never happens for the father. 80-85% of the cases went to sole custody for mothers. 15%-20% of the cases went as sole custody to fathers. Father got custody ONLY if the mother was unavailable. The percentage is so big because many of the Romanian mothers went to work abroad. So this is the ONLY reason why men got the custody. Because mother did not asked for or it was obvious that after 4 years of absence of the mother would be very traumatic for kid to be taken out from the house of the father.

It might be relevant this survey of ARPCC. We did it for one single judge in Bucharest checking the 96 cases where both parents were available and where she ordered custody in 2009. The judge she granted sole custody to mothers in 93 cases and sole custody to fathers in 3 cases. But if we read that three cases we saw in 2 cases the kid was actually staying with the grandmother of the father. The 3rd case the mother was extremely unavailable (recognizing she works 12 hours/day 6 days/week).

After 01.10.2011 - the law obliges the judges to give joint custody. Still many lawyers and most judges make a big mistake. They accept the declaration of a parent to renounce to custody. As a result in about 50% of the cases (we made a non-representative survey to some jury houses) either the mother or the father renounce to custody. This si illegal after the law (confirmed by the national institute of the magistrature) but the judges are so poorly trained that they accept that. ARPCC works now collaboratively with the authorities to impose what is called "Recurs in Anulare" (annulment appeal) which should "fix" that in the sense that for the future the judges will not be allowed to accept the simple declaration of the parent that he/she renounce to custody.

The current statistic is like this:
> joint legal custody - about 48% of the cases
> joint physical custody - 2% of the cases (only if the two parents really agree to that, the judges generally accept such agreements with no much questioning)
> sole custody (as explained above, illegally ordered) - 50% of the cases (stupid fathers or bribed mothers declare in front of the judge that they want to renounce and the judge accepts that against the law which explains clearly that only "extremely serious reasons" can determine to give sole custody (e.g. unavailable parent, very sick parent, missing one, violator, very aggressive, etc.)

How many (percentage) children can spend equal time with both the parents.
Before the "Reform" from 01.10.2011 the kid went to mother in 80-85% of the cases. The father generally had the right to see the kid every 2 weeks for 2 overnights. Also he could see the kid somewhere around 50% of the holidays (but not all orders were like this, sometimes father got much less time in holiday).

Almost nothing changed after the "Reform". The judges (as explained, extremely poorly trained on the new aspects with regard to the child psychology and child needs) and incapable to "make connections" between the articles of the law continued the practice from the old time. So many continue to give very limitative visitation programs to the non-residential parent: one weekend every 14 days. (is just an assessment but I think this is around 50% of the cases - if the non-residential parent does not make extremely huge efforts to prove he needs more time with the kid) Some more"innovators' judges give also the right to non-residential parent to visit the child for few hours in one (or max 2) days during the week. This tends to become the 'best practice' but is far from being general. And is far from being useful in the high-conflict situations.

There is one Jury House (we have 300 in Romania) in Bucharest where they always say "it is in the best interest of the child that (s)he has unlimited time with the other parent and as per CEDO the state should not intervene". Basically the judges in that Jury House (about 5 judges) consider this visitation right should not be restrictive. This is a true innovation in the jurisprudence. However only works with parents where there is no (major) conflict. But does not work with cases where is conflict because if the residential parent block the non-residential parent to see the kid, then the authorities will not have a clear program to try to "execute" giving them a "nice excuse" to do nothing.

One other issue here is that there are no good provisions for "executing" the visitation rights --- e.g. if the residential parent is unwilling to allow the non-residential parent to see the kid, the order from the judge cannot be put in execution by the state authorities which do not want to intervene (police will refuse support, child protection will only mimic support but they won't do anything). I know a case of a policeman who is father. He cannot see the kid at all (for many months) because the "mother does not want that". Even he has a decision of a Court, his colleagues in police do not help him. Want to tell you that there are good laws in Romania which punish the person who blocks the "personal link of the kid and the parent" even with prison. But no-one wants to apply (not the police, nor the prosecutor neither the judge). There are about 35.000 divorces with kids in Romania every year. Every year there are about 1800 complaints that the visitation right is not respected. Out of them, only for less than 8 cases the Prosecutor decided to send the file to the Judge. There is no case however when a an abusing parent was actually penalized by the judge.

> if both parents are available and they agree to joint physical custody (joint custody with alternating residence) - the judge will give this
> if both parents are available and they do not agree to joint physical custody, the mother gets the kid, the father gets a very restrictive visitation right (max 17-20% of the time with the kid)
> if the mother refuse the contact the father will not get even that 17-20% of the time with the kid. Authorities will never (except maybe if the parent is a very rich person) intervene into this situation. So we speak of a joint legal custody where is very hard for the non-residential father to actually do something real to be with the kid
> if only one parent is available he (or she) will get the sole custody
> the only solution for a father to actually see the kid is "not to upset the mother" or the mother to be relaxed about the visitation idea, or mother not to have time and actually to ask the father to help witch child care. Wherever the mother will want to blackmail the father or just to revenge against him she will have unlimited power to do so and although there are laws which, in theory, should prevent such abuses. Those laws will not be applied.

Hope this helps -

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