by Marina Farmakidis-Markou, lawyer at Diotima Center*
To begin with, it is worth stating that parental responsibility could be entrusted by the court to both parents jointly also under the previous family law provisions, provided that parents were in agreement. On the contrary, the new family law number 4800/2021, by establishing joint and equal custody and by giving greater visitation rights to the non-custodian parent in a separation, allocating him or her one third of all available time, stipulates these arrangements as compulsory and not subject to an agreement.
In line with the notion of “joint and equal parental responsibility” the new law provides for the possibility of the non-custodian parent to challenge the other parent’s decisions before the courts on the basis that parental responsibility is not exercised in the best interests of the child. Moreover, the custodian parent must, under the new law, obtain the consent of the other parent for “important” issues concerning the child’s education and health and in the event of disagreement the case will be decided by the court.
The above provisions will surely increase the frequency of the appeals to courts, a situation which will financially harm the custodian parent and eventually prevent him/her from seeking for a divorce.
Let us not forget that extensive co-decision on child issues is appropriate for parents who maintain a good relationship after separation or divorce, and its enforcement by law shall ultimately induce further controversy.
Furthermore, for the first time, the best interest of the child (a concept to be judged on a case-by-case basis) is deemed to be always served by the active presence of both parents in her/his upbringing. However, by equating the child’s best interests with parents’ equal participation in the child’s upbringing, rather than requiring case-by-case determinations, the new law violates article 3 of the convention on the rights of the Child. It also violates Article 31 of the Istanbul Convention, ratified in Greece by Law 4531/2018, in virtue of which “the Parties shall take all necessary measures to ensure that, in determining the custody and visitation rights of children, incidents of violence covered by the scope of this Convention are taken into account”.
While the new law provides for the removal of parental care or custody in cases of the dubious “disruption of the child’s emotional relationship with the non-custodian parent and his family”, it does not provide for the restriction or revocation of visitation rights in cases of domestic violence or unlawful acts against sexual freedom by the parent having the visitation rights, requiring the prior issuance of a respective final conviction, despite the fact that such a decision might be issued with considerable delay, leaving, in the meantime, the child and the custodial parent at risk. Such omissions in the law can force parents (especially women who are considerably more likely to experience domestic violence) and their children into ongoing contact with perpetrators of domestic violence and create opportunities for further harm.
The law thus appears to protect the custodian parent less than the parent who exercises visitation rights, while directly violating law 3500/2006, which provides for the possibility of issuance of restrictive measures and the restriction or suspension of those rights from the very initial stage of the filing of the lawsuit by the survival.
Furthermore, by allocating 1/3 of the child’s available time to the non-custodian parent the law creates many issues of application by the courts: on what basis will this time be calculated, how is the issue of long distances between parents’ homes be resolved, how the scientifically recognized child’s need for stability be safeguarded etc.
However, despite the inappropriate mathematical approach of the time that the non-custodian parent spends with his/her child, an equally appropriate mathematical approach to the amount of alimony is absent – despite the great controversy that arises in courts over the amount of alimony, often exceeding in intensity the very issue of the assignment of custody and the regulation of visiting rights.
Unfortunately, the new law calls into question the necessary presumption that the decisions of the custodian parent are in favor of the children’s rights, and eventually leads to the weakening of her/his rights and discretions. This is a condition that will mainly affect mothers who, while raising their children with the insufficient alimony usually awarded by the courts, as well as with the lack of support from the state and the difficult (in many cases) or even violent relationship with their ex-partner, will be obliged to cope financially and mentally with the increased legal remedies provided by the law in favor of their ex-partner.
We, at Diotima, believe that a modern and inclusive Family Law should enhance and not impose the consensual path to joint custody, by reenforcing family courts with specialized judges, psychologists and social workers, and by taking into consideration the uniqueness of each case. In no other state is joint-custody imposed by law by horizontal and rigid solutions; why should it be in Greece?
*Diotima Center, created in 1989, is a women’s non-profit organization, specializing in issues of gender-based violence. Its services include reception and needs assessment, psychosocial and legal support to survivors of gender-based and domestic violence. It also offers group meetings to increase awareness about women’s rights and empowerment activities.
This article is part of the feature on the new family law (law 4800/2021), which modifies the framework governing parent-child relations and introduces joint- custody of children. The feature is published in the July/ August 2021 issue of Greek Business File, available here.