CHANGE OF CUSTODY MEASURES
A "change in circumstances" in which the measures concerning the exercise of parental authority over children under the age of majority should be modified under the provision of Article 59(9) of the Family Code?
In the first place, measures concerning the exercise of parental rights and the personal relationship between children and parents are taken taking into account all interests, but the priority is given to the child's interest, which the court takes care of of its own motion. The children have an interest in having parental responsibility entrusted to the parent who, having regard to their age, sex and degree of development, is better able to take adequate care not only of their domestic affairs but also of their good upbringing and development as mature persons, which is impossible to achieve without a full relationship with the other parent.
In the case-law of the Supreme Court of Cassation, it is held that the best interests of children are always linked to their physical development and upbringing in a way that ensures normal conditions for their intellectual growth and the protection of their personal and property rights, i.e. irrespective of the particularities of the individual case and the individual approach, when deciding on the issues of parental rights and the regime of personal relations between children under the age of majority and the parent with whom they do not live, the court must always assess the best interests of the children.
Where, at the time of the de facto separation, by agreement of the parents or for objective reasons, the children have been brought up for an extended period of time with one parent, it is in their best interests that they continue to be brought up by that parent if he or she has the necessary qualities and conditions to do so. Foremost among the personal qualities of a parent is to recognise and respect the children's interest in having a meaningful relationship with the other parent. The age of the children also matters. When it is too low, they need daily maternal care and affection. An important indicator is whether the children feel comfortable in the conditions in which they are brought up after the actual separation. Particularly when the relationship between the parents is intolerant, a new change in the way the children are brought up would in any case have an adverse effect on their already strained psyche.
The courts, taking into account the circumstances of the particular case and the interests of the children, must determine the appropriate personal relationship between the parents and the children in such a way as to create a normal environment for maintaining that relationship, which may be done not only by visits but also by prolonged personal contact with the parent with whom the children do not live permanently.
Circumstances in which the court may modify the measures previously ordered or the de facto established relationship with the child by imposing new measures in the exercise of parental authority over children under the age of majority need to affect the child's best interests in such a way as to have an immediate impact on the child's health, normal family environment or social environment (e.g. problems in communication with one parent and his/her new family, aggressive behaviour of the other parent or negative reactions to the family and social environment, in Where, however, the change in the life of one parent has occurred only in the living conditions under which he or she lives, but without improving the children's established regime, it is in their best interests that the normal family environment and surroundings be preserved if that parent also possesses the necessary qualities to provide the necessary care and does not interfere with the personal relationship with the other parent, in accordance with the requirements of responsible parenthood.
A change in circumstances justifying the need to modify the measures concerning the exercise of parental authority over a minor child shall occur in the following cases: where the circumstances which were taken into account when the original measures were determined have changed, where the modifications result from measures concerning the exercise of parental authority which have become meaningless, or where the measures have in fact been modified.
In all cases, the court must consider how the circumstances affect the child's situation and the effectiveness of the measures which determine the same. The change of circumstances taken into account in determining the initial measures may relate to a change in the parental, educational or moral qualities of those exercising the measures, to the social environment in which the child has been living since the initial decision, to housing and living conditions.
Circumstances affecting the child's situation may include: deterioration in the living conditions of the parent to whom the child is allocated or improvement in the living conditions of the other parent, the inability of the parent to exercise parental authority, loss of parental authority or the parent's de facto inability to cope with the child. Altered circumstances may also include those relating to the parent's newly acquired rights and obligations with regard to the compulsory observance of the measures laid down - the alienation of the child through the fault of the parent who has custody of the child in relation to the other parent or vice versa, the parent who has custody of the child being prevented from exercising a personal relationship with the other parent, the failure to return the child after exercising a personal relationship with the parent who has not been granted custody and the failure to comply with the measures and to provide personal care for the child.
In this sense is also the practice of the SCC, rendered in the decisions under Article 290 of the Civil Procedure Code / e.g. p.129 of 17.06.14 in case No.7660/13 of the 3rd c.d.; p.160 of 25.06.14 in case No.214/14 of the 3rd c.d. /.