Parental Authority and Child Custody in Romania

What does child custody mean in the Romanian Civil Code?

‘Custody’ is the word we all use, but the Civil Code doesn’t use it. The law talks about parental authority: the rights and duties concerning the child as a person and the child’s property, which belong equally to both parents (art. 483(1) of the Civil Code). When you ask me ‘who gets custody’, you’re really asking me three questions, and the court answers them separately:

• who makes decisions for the child: the exercise of parental authority (art. 397 and art. 398 of the Civil Code);
• where the child lives: the child’s residence (locuința copilului) (art. 400 of the Civil Code);
• how and when the other parent sees the child: personal contact (legături personale) (art. 401 of the Civil Code).

Each parent’s contribution to the child’s costs has its own page: child maintenance (pensie de întreținere).

I can help you in Cluj with all of these claims, whether they come up in a divorce or the parents were never married. The guardianship court (instanța de tutelă) is the Cluj-Napoca District Court (Judecătoria Cluj-Napoca) when the child lives in the city (art. 94 point 1(a) and art. 114(1) of the Code of Civil Procedure, Codul de procedură civilă), and appeals are heard by the Cluj Tribunal (Tribunalul Cluj). The other family matters I can help you with are on the family law page.

Who gets custody of the child after divorce?

Both parents, as a rule. After divorce, parental authority belongs jointly to both parents, unless the court decides otherwise (art. 397 of the Civil Code). The rule also applies to unmarried parents (art. 505(2) of the Civil Code), and the parents exercise it together and on an equal footing (art. 503(1) of the Civil Code). In practice:

• important decisions, such as the type of education, complex medical treatment, the child’s place of residence and managing the child’s property, are made only with both parents’ agreement (art. 36(3) of Law no. 272/2004);
• for everyday matters, either parent is presumed, as far as third parties are concerned, to have the other’s consent too (art. 503(2) of the Civil Code);
• both parents, however they exercise authority, have the right to receive information about the child from the school, the doctor and any other institution (art. 36(5) of Law no. 272/2004).

Joint authority doesn’t mean time split in half, and the parent the child lives with can’t make the important decisions alone. The parents can agree on how authority is exercised, with the guardianship court’s approval (art. 506 of the Civil Code), but neither of them can give up parental authority (art. 36(6) of Law no. 272/2004).

When is sole parental authority granted?

Only for well-founded reasons, in the child’s best interests (art. 398(1) of the Civil Code). Law no. 272/2004 lists what can count as a well-founded reason (art. 36(7)):

• a serious or repeated infringement of the other parent’s parental authority;
• alcoholism, mental illness or drug addiction;
• violence against the child or against the other parent;
• parental alienation (înstrăinare părintească), where one parent deliberately creates or uses the child’s reluctance or hostility towards the other (art. 4(h) of Law no. 272/2004);
• convictions for human trafficking, drug trafficking, sexual offences or violent offences;
• any other situation in which the parents objectively can’t cooperate on joint decisions.

The parent who doesn’t exercise authority keeps the right to watch over the child’s upbringing and education and to consent to the child’s adoption (art. 398(2) of the Civil Code). Sole authority isn’t the same as deprivation of the exercise of parental rights (decăderea din exercițiul drepturilor părintești), the sanction for a parent who endangers the child’s life, health or development (art. 508(1) of the Civil Code). I’ve written about it in the article on loss of parental rights (in Romanian). If there is violence in the family, I can also ask, separately, for a protection order (ordin de protecție).

Where will the child live?

If the parents don’t agree, or if their agreement goes against the child’s interests, the guardianship court sets the child’s residence with the parent the child lives with on a stable basis. If the child lived with both parents until the divorce, the court chooses one of them according to the child’s best interests (art. 400(1) and (2) of the Civil Code).

The law doesn’t prefer the mother or the father. Besides the child’s needs under art. 2(6) of Law no. 272/2004, the court weighs concrete criteria (art. 21(1) of Law no. 272/2004):

• each parent’s willingness to involve the other in decisions about the child and to allow personal contact;
• each parent’s housing situation over the last 3 years;
• any history of violence against the child or against other people;
• the distance between each parent’s home and the child’s school.

Only in exceptional cases is the residence set with the grandparents, other relatives or a care institution (art. 400(3) of the Civil Code).

Once set, the residence can’t be changed without the parents’ agreement, except in the cases the law expressly provides for (art. 496(4) of the Civil Code). Moving the child to another city or another country, if it affects the exercise of parental authority or of certain parental rights, needs the other parent’s prior consent. If you disagree, the guardianship court decides, after the psychosocial inquiry report (raport de anchetă psihosocială) and after hearing the parents and the child (art. 497 of the Civil Code).

How is the contact schedule set?

The parent the child doesn’t live with has the right to personal contact with the child. If the parents disagree, the guardianship court decides how it will work, after hearing the child, which is compulsory (art. 401 of the Civil Code). The right belongs first of all to the child (art. 262(2) of the Civil Code, art. 17(1) of Law no. 272/2004) and can only be limited for serious reasons. A quarrel between the adults isn’t one of them.

The contact schedule (program de legături personale) depends on the child’s age, their needs for care and education, how strong the emotional bond is with the other parent, that parent’s behaviour and any parental alienation (art. 17(4) of Law no. 272/2004). Personal contact can take the form of (art. 18(1) of Law no. 272/2004):

• the child staying with the other parent for a set period, with or without supervision;
• visits at the child’s home or meetings in a neutral place;
• letters, phone calls, video calls;
• passing on information about the child, including recent photos and medical or school reports.

A common example for school-age children: every other weekend, one evening a week, half of the school holidays and alternating festive holidays; for a two-year-old the schedule looks different. The court also decides who collects the child and brings them back, and for a school-age child it can order up to 7 consecutive days out of a 14-day period, outside the holidays (art. 18(3^1) of Law no. 272/2004).

How does the court decide? The psychosocial inquiry and hearing the child

The guardianship court decides on the basis of the child’s best interests, the findings of the psychosocial inquiry report and the parents’ agreement, and it hears the parents (art. 396(1) of the Civil Code). The inquiry is carried out by the guardianship authority (autoritatea tutelară) at the town hall for the area where the child lives, which visits each parent.

A child who has turned 10 must be heard, and a younger child if the court considers it necessary (art. 264(1) of the Civil Code). The hearing is held in chambers (camera de consiliu), and the court decides whether the parents are present (art. 226 of the Code of Civil Procedure). The child’s opinion is taken into account according to their age and maturity (art. 2(6)(b) of Law no. 272/2004); it doesn’t decide the case on its own, and the court looks at the reasons behind it.

The usual steps of a case at the Cluj-Napoca District Court:

1. The application, with the civil status documents and evidence about housing, income and school. The court stamp duty (taxă judiciară de timbru) for claims about the child’s residence, parental authority or personal contact, when they aren’t ancillary to a divorce, is 20 lei per claim (art. 15(d) of Government Emergency Ordinance no. 80/2013, OUG 80/2013).
2. The psychosocial inquiry and, if needed, interim measures by interim injunction (ordonanță președințială) on the child’s residence and maintenance while the divorce is pending (art. 920 of the Code of Civil Procedure).
3. Hearing the parents and the child, documents, witnesses.
4. The judgment, which can be appealed to the Cluj Tribunal within 30 days of being served (art. 468(1) of the Code of Civil Procedure).

The law requires these cases to be decided within a reasonable time (art. 263(4) of the Civil Code), but how long it takes depends on the court’s workload and on the inquiry; I can’t promise you a date.

Can I take my child abroad without the other parent’s consent?

For a trip, as a rule, no. A minor leaving Romania with only one parent needs the other parent’s declaration of consent to travel abroad, valid for at most 3 years from when it was made and notarised or authenticated at a diplomatic mission (art. 30(1)(b) and (7) of Law no. 248/2005). The exceptions are limited:

• a parent who exercises parental authority alone under a final judgment doesn’t need a declaration (art. 30(1)(c)); having the child’s residence set with you, with joint authority, doesn’t exempt you;
• the declaration isn’t needed when the child has their domicile or residence in the destination country (art. 30(6^1));
• with supporting documents, the child can leave for medical treatment that isn’t available in Romania or for studies and official competitions (art. 30(3)).

If the other parent refuses to sign without a reason, you can ask the guardianship court to decide in their place (art. 486 of the Civil Code). The declaration only covers leaving the country; moving the child abroad is a change of residence, which needs the other parent’s consent or a court decision (art. 497 of the Civil Code).

What can I do if the other parent doesn’t respect the schedule or the judgment?

A judgment on the child’s residence and personal contact is enforced under special rules (art. 910(1) of the Code of Civil Procedure):

1. The bailiff (executor judecătoresc) sends the parent the child is with the court ruling authorising enforcement (încheierea de încuviințare) and a summons (somație) to turn up with the child on the set date or to allow personal contact according to the schedule (art. 910(2)).
2. If that parent doesn’t comply, the bailiff refers the matter to the enforcement court (instanța de executare), which can order them to pay a penalty of 100 to 1,000 lei for each day of delay (art. 910(3), art. 906(2)). Separately, Law no. 272/2004 allows penalties for each day of delay of between 10% and 15% of net monthly income, at least 300 lei, doubled in cases of parental alienation (art. 20(2)(a)).
3. If the obligation still hasn’t been met after a month, the bailiff carries out the enforcement directly, in the presence of a representative of the child protection service (DGASPC, Direcția Generală de Asistență Socială și Protecția Copilului); no one may treat the child roughly (art. 911(1), (2) and (4)).
4. If the child firmly refuses, the court can order a psychological counselling programme of up to 3 months, after which enforcement resumes (art. 913).
5. If the parent hides the child, the bailiff refers the matter to the prosecutor’s office (parchet) for failure to comply with a court judgment (art. 912(2)).

Can the arrangements be changed?

Yes. If circumstances change, for example a parent moves, the child changes school or personal contact is repeatedly refused, the guardianship court can change the measures on the parents’ rights and duties towards the child, at the request of either parent, the child, another family member or the prosecutor (procuror) (art. 403 of the Civil Code). A divorce judgment doesn’t freeze the child’s situation until they come of age; the other consequences of divorce are described in the article on the effects of divorce (in Romanian).

How I can help

I’ll explain the difference between parental authority, the child’s residence and personal contact, and tell you what you can ask for in your situation. I believe an agreement between the parents spares the child a lot, so I first try to reach an understanding with the other parent, which we can have approved by the court, or by the notary together with the divorce. If that isn’t possible, I draft the application and represent you at the Cluj-Napoca District Court and, on appeal, at the Cluj Tribunal, including when the judgment is enforced. For the contribution to the child’s costs, you’re welcome to try the child maintenance calculator.

I’ve written about the concept in detail in the article on parental authority (in Romanian). The consolidated text of the Civil Code is on legislatie.just.ro.

You don’t need to have all the documents ready. Write to me and tell me what happened, and I’ll call you.