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Parental authority in the event of separation of parents

Verified 08 December 2021 - Directorate of Legal and Administrative Information (Prime Minister), Ministry of Justice

Experimentation with compulsory mediation prior to family disputes

Published on 1 January 2023

On an experimental basis, an attempt at mediation is compulsory before any request for amendment of the approved decisions and conventions laying down the procedures for the exercise of parental authority in the courts of Bayonne, Bordeaux, Cherbourg-en-Cotentin, Évry, Nantes, Nîmes, Montpellier, Pontoise, Rennes, Saint-Denis and Tours. The scheme is extended for 2023 and has been extended to 22 courts.

However, this obligation does not apply if violence has been committed against a parent or the child.

The rights and duties of parents towards their minor child remain an obligation even if they no longer live together (divorce, termination of cohabitation, dissolution of Civil partnerships). In case of disagreement on the child's upbringing, on his/her daily life, on the place of his/her residence, on the distribution of custody of the child, the parents have the possibility to address the Judge for Family Affairs (Jaf).

The following assumptions are possible:

  • If the parents were married, the two parents exercise in common parental authority.
  • If the parents were not married, the father jointly exercises parental authority with the mother if he has recognized the child before the age of one. If the father recognized the child after the age of one year, the mother alone shall exercise parental authority. However, after the recognition of the child, the father may also be assigned the exercise of parental authority under certain conditions.

If the interests of the child so require (in order to protect the child, in the event of physical or psychological violence, in the event of neglect, etc.), the Family Court (Jaf) may entrust the exercise of parental authority to a single parent. In that case, it shall lay down the conditions for the exercise of rights of access and accommodation. This right cannot be denied unless there are serious grounds (endangering the life of the child by one of the parents).

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General case

Parents who separate may agree among themselves on how they wish to exercise their rights and duties towards their child. In this case, it is strongly recommended to draft a convention.

The Convention shall lay down the conditions for the exercise of parental authority by each parent and the contribution of each to the maintenance and upbringing of the child.

Parents may, if they wish, submit the agreement to a judge for review. approval by filling out the cerfa form n°16139. This form also includes templates for conventions.

Joint request for the approval of a parental agreement

The following documents must be attached to the form:

Other documents may be useful depending on the request (proof of domicile, tax assessment,...).

The form must be sent to the family judge in the court of the domicile of either parent.

Who shall I contact

The judge may decide to validate this agreement or refuse to do so if he finds that the consent of one of the parents was not freely given. 

The judge may also refuse if he finds that the best interests of the child have not been sufficiently taken into account.

The certified agreement (approved by the judge) may be amended or supplemented at any time by the judge, at the request of a parent or public prosecutor's office (which may itself be seized by a third party, parent or not).

If parental authority is entrusted to only one parent, the latter shall exercise it on condition that the rights of the other parent are taken into account. The latter thus has a right of control over the child's upbringing and maintenance.

Divorce by mutual consent

Registered parenting arrangements are obligatory. The divorce agreement by mutual consent is validated and published by a notary.

Who is the competent judge?

The Family Court (Jaf) is competent, in the event of separation of the parents, for matters relating to the conditions exercise of parental authority and participation in the maintenance and upbringing of the child.

The intervention of the judge may be requested by one of the parents or by the public prosecutor's office (may itself be solicited (seized) by a third party, parent or not).

Who shall I contact

What is the content of the judge's decision?

Jaf must ensure that the interests of minor children are safeguarded. To this end, it shall take all measures to ensure that the child's relationship with each parent is maintained.

The judge may decide that parental authority shall be exercised

  • either in common by the two parents (this is the principle),
  • by only one parent (in special circumstances such as child abuse).

The judge shall also determine the residence of the child and the conditions for exercising the right right of access and accommodation.

The judge may provisionally assign the enjoyment of the family's dwelling to one of the two parents. The judge may award an occupancy allowance to the parent who no longer occupies the dwelling. The judge shall fix the duration of such enjoyment for a maximum period of 6 months.

The judge's decisions may be amended at any time, if new elements arise, at the request of one of the parents (using the cerfa form n°11530) or the public prosecutor (can itself be seized by a third party, parent or not).

Application to the family judge (parental authority, right of access, maintenance...)

The judge can ask for a social inquiry or a medical-psychological examination. They may not be used in connection with the procedure for the separation of parents.

A counter-investigation or re-examination is possible at the request of one of the parents.

Minor children may be heard ex officio or at their request if the judge considers that they are capable of doing so.

When the judge takes the initiative to hear a child, he or she performs it personally or entrusts this task to a person or a service of his or her choice (child welfare). Where the minor so requests, his or her hearing may be refused only by a reasoned decision from Jaf.

The judge may order the enforcement of its decision under penalty payment. If a parent does not comply with the decision, the judge may order the parent to pay a fine not exceeding €10,000.

Exceptionally, the public prosecutor may, at the request of a parent or JAF: titleContent, call on the police or gendarmerie to enforce its decision.

In the event of disagreement between the parents, the judge may propose a family mediation to seek agreement on the exercise of parental authority.

If the parents agree, the judge appoints a family mediator.

FYI  

the judge may order that the child cannot leave France without the authorization of his or her parents 2 parents. This prohibition shall be laid down in wanted persons file by the public prosecutor.

The judge may decide, in the interests of the children, that parental authority will be exercised by one of the parents (in the case of special circumstances such as violence against the child).

In this case, the parent who does not exercise parental authority has the right and duty to supervise the maintenance and upbringing of the child.

If the parents do not agree, the judge will, in principle, grant the parent a right of access and accommodation.

The right of access may be exercised at the home of the parent exercising parental authority, or in a fixed or specified neutral place, and possibly in the presence of a third person (social worker).

This right may, however, be denied only on serious grounds (risk to the child's physical or psychological state).

Parents must be informed of important choices about their children's lives and must respect their obligation to maintain and educate their children.

The parent who does not exercise parental authority may refer the matter to the family court if he considers that the other parent is acting against the best interests of the child.

This parent must contribute with the other parent to the child's maintenance. The maintenance obligation most often takes the form of a maintenance.

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