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Parental Responsibility

Table of contents:

1. What does the legal term "parental care" mean? What are the rights and obligations of a holder of parental responsibility?
2. As a general rule, who is a holder of parental care?
3. If the parents are unable or unwilling to exercise parental care, can another person be appointed in their place?
4. If the parents divorce or split up, how is parental care for the children determined?
5. If the parents conclude an agreement on parental care, which formalities must be respected to make the agreement legally binding? 
6. If the parents cannot come to an agreement, what alternative means are available to them?
7. If the parents go to court, what issues can the judge decide upon?
8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?
9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice?
10. Which court or authority is competent to decide? Which formalities must be respected and which documents are required?
11. Which procedure applies in these cases? Is an emergency procedure available?
12. Can I obtain legal aid to cover the costs of the procedure?
13. Is it possible to appeal against a decision on parental care?
14. What should I do to have a decision issued by a foreign court recognised and which procedure applies?
15. Which law does the court apply in a proceeding where the child and the parents do not live in the Republic of Croatia or are of different nationality?


1. What does the legal term "parental care" mean? What are the rights and obligations of a holder of parental responsibility?             
Parental care is a legal relationship that arises between the parent and the child upon the child’s birth (or upon adoption). Parental care is a legal term, of personal and legal character; it is therefore classified among personal rights and forms a part of the personal status of an individual.

The legal concept of parental care (chapter “Parental Care” of the Family Act) comprises several concepts - (1) child’s rights and duties, (2) parental responsibilities, duties and rights,(3) protection of the rights and well-being of children and young adults, and (4) cessation of parental care.

Parental care comprises the protection of the child’s personal and property-related interests with the aim of protecting his/her well-being. Such a legal conceptualization determines the content of the concept of parental care. There are two important functions on the part of parents – responsibility for upbringing the child and protecting the child’s well-being as a special form of legal activity, and protection of the child’s personal and property relations.

In addition to the rights and duties of parents, parental care comprises the concept of parental responsibility, aimed at protecting the child’s well-being. A responsible parent will invest all of his/her knowledge to properly raise their child, adapting in the process his/her circumstances to the child’s needs and interests.

Within parental care, parents have duties and rights in relation to their child. Parental duties are correlative to the child’s rights. The Family Act stipulates certain rights of the child, and considers parents the parties primarily responsible for the child, with their duty being to make it possible for the child to realize such rights. Parental rights are a part of parental care and are exercised primarily in relation to third persons. Based on those rights, parents are the ones with primary responsibility for their child. Child care is their right. Article 5 of the Convention on the Rights of the Child forms a basis for the above-referenced definitions, considering parents as those having the primary responsibility for their child.

 

2. As a general rule, who is a holder of parental care?
Parental care, i.e. right, is related exclusively to parents, and they may not renounce it, nor can it belong to third persons.
Parental care is, therefore, non-transferable, and both the mother and the father are equally, jointly and consensually bound by it. Equally distributed care between the parents is a reflection of gender equality in the Croatian family law, but also of the equality of mother and father as parents. Parental equality implies equal responsibility, rights and duties of both parents in all aspects of parental care, in an equal scope. Neither of the parents has a greater legal role nor a privileged position compared to one another or to the child (unless stipulated otherwise by a decision of a competent body).

Joint parental care reflects the principle of common responsibility of both parents for their child (pursuant to Article 18 of the Convention on the Rights of the Child, Article 2 of the Family Act) and the right of the child to enjoy parental care (Article 5 of the Convention on the Rights of the Child).

The provision on consensual parental care indicates the need on the part of parents for making agreements regarding individual actions, taking into account the child’s well-being.

 

3. If the parents are unable or unwilling to exercise parental care, can another person be appointed in their place?
The Family Act stipulates that the social welfare centre will immediately - and no later than eight days from the day it learns that both parents are absent, prevented from or incapable of, for medical or other reasons, looking after the child, and that they have not entrusted the care and upbringing of the child to another person who meets the conditions prescribed for a guardian - entrust the care and upbringing of the child, without the consent of his/her parents, to another person, children’s home or other legal entity performing social welfare activities .

Such a decision of the social welfare centre may be in effect for 60 days at the latest. Filing an appeal against such a decision does not stay its execution. If the social welfare centre assesses that the circumstances that led to entrusting the child’s care and upbringing to another still exist upon the expiry of a 60-day deadline, it will immediately render a decision to put the child under guardianship.

If the parents request that their child be returned to them and that a decision be made on the termination of guardianship, but the social welfare centre believes this is not in the child’s interest, it will file a motion to a competent court to adopt a measure aimed at protecting the child’s well-being. If the social welfare centre fails to initiate a procedure in court within fifteen days from the day the parents filed a request, the parents may file a request for the return of the child with the court.
Intervention on the part of the social welfare centre is stipulated by law, for the purpose of protecting the child that remains uncared for due to the circumstances his/her parents are faced with.

Such circumstances are supported by factual reasons. Absence implies different place of residence of the parents and the child (e.g. the child attends school in one place, and his/her parents live in another); unavailability refers to, for example, a longer journey on the part of the parents, or their serving a prison sentence; medical reasons imply undergoing a treatment or a surgery; similar reasons are a legal norm that will depend on the concrete situation, e.g. if a parent works over 12 hours a day and is therefore unable to look after the child.

Both parents or the parent bringing up the child on their own may temporarily entrust the care for and the upbringing of the child to a person who meets the conditions pertaining to guardians; only upon the decision of the social welfare centre may the child be temporarily entrusted to a social welfare institution or other legal person performing social welfare activities.
In the event of death of the parent with whom the child lives, the court will in extra-judicial proceedings, upon the motion of the other parent, child of the social welfare centre, immediately decide on the further care for the child.

In extra-judicial proceedings, the court will deny the parent the right to live with and raise the child if the parent largely neglects the upbringing of the child or if there is a risk of improper upbringing of the child, and it will entrust the raising of the child to another person, institution or legal entity performing social welfare activities.

In extra-judicial proceedings, the court will entrust the upbringing of the child with behavioural disorders to a social welfare institution, if the parents or foster parents are incapable of properly raising the child. The decision will be immediately delivered to the social welfare centre, for the purpose of rendering a decision on the care outside the child’s own family.

 

4. If the parents divorce or split up, how is parental care for the children determined?
If the parents live apart, the court will decide which parent the child will live with, and determine the way and time of meetings of the child and the other parent.

For the purpose of protecting the child’s well-being, his/her meetings and spending time with the parent who does not live with them may be restricted or banned; depending on the circumstances of the case, the court may designate a person in whose presence such meetings will take place.

The court may decide to entrust certain duties to the parent the child does not live with, such as looking after the child’s health, education, extracurricular activities, or activities such as representation of the child or management of their assets, etc.

The decision on which of the parents the child will live with, as well as on the ways and time of meetings of the child with the other parent, will be made regardless of whether such parent is married or in a common-law marriage. The only thing that is relevant is that the parents do not live in the same family.

 

5. If the parents conclude an agreement on parental care, which formalities must be respected to make the agreement legally binding?
When deciding which of the parents the child will live with, the court will take into account the agreement between the parents, unless it is contrary to the child’s well-being.

 

6. If the parents cannot come to an agreement, what alternative means are available to them?
If the parents cannot agree on exercising parental care or the realization of the child’s rights, the court will, in extra-judicial proceedings and upon the motion of the parents, the social welfare centre competent for the place the child resides in, or of the child, render a decision protecting the child’s well-being.

Upon the motion of the parents, the child or the social welfare centre, and if so required by significantly changed circumstances, the court will make a new decision as to which of the parents the child will live with and when he/she will be meeting and spending time with the other parent. If needed, the court will also render a new decision on other aspects of parental care.

 

7. If the parents go to court, what issues can the judge decide upon?
Before deciding on which of the parents the child will live with and on other aspects of parental care, the court will obtain a relevant opinion and proposal of the social welfare centre.

The social welfare centre must deliver to the court the above-referenced opinion and proposal within thirty days.
When parental care is decided upon in divorce proceedings, the social welfare centre may take into account the opinion of the mediator.

In its decision on which of the parents the child is to live with and on parental care, the court will, if necessary, order the person the child is temporarily placed with to deliver it to the parent.
In this case, the court will set the deadline for surrendering the child or order that he/she be immediately surrendered to the parent.

The court decision on surrendering the child to the parent he/she is to live with will be binding for the parties, the social welfare centre and the person who the child is temporarily placed with.

The court will not be bound by the parties’ applications in the proceedings in which it decides on which of the parents the child is to live with and on parental care.

The court is authorized to decide on which of the parents the child will live with, on the way of meetings between the child and the parents, as well as on other aspects of parental care, taking into account the agreement of the parents, if it considers that such an agreement is in the interest of the child’s well-being.

No review is permitted against the second-instance decision on which of the parents the child is to live with and on parental care.

 

8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?
The court may decide that certain duties should be performed by the parent the child does not live with; those include, for example, looking after the child’s health, education, extracurricular activities, certain activities that involve representing the child or managing his/her property, etc. When rendering this decision, the court will take into account the agreement between the parents, unless it is contrary to the child’s well-being.

 

9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice?
The parents decide on the child care jointly and consensually, with the aim of protecting the child’s well-being and his/her personal and property interests.

 

10. Which court or authority is competent to decide? Which formalities must be respected and which documents are required?
Municipal courts have subject matter jurisdiction in family disputes.
Only in exceptional cases does the court get the chance to decide in the civil proceedings which of the parents a juvenile child, either biological, adopted or that still under their care after they have reached full age, will live with, i.e. on entrusting the child to another person, social welfare institution or other legal entity performing social welfare activities, as well as on parental care:

a) in a matrimonial dispute, when rendering a decision by which it determines that the marriage does not exist or a decision on marriage annulment or divorce


b) in a maternity or paternity dispute when rendering a decision by which maternity or paternity is established.
In other cases, the court will render relevant decisions in extra-judicial proceedings.

General territorial jurisdiction lies with the court on whose territory the defendant permanently resides.
If the defendant does not permanently reside in the Republic of Croatia, general territorial jurisdiction lies with the court on whose territory the defendant temporarily resides.

If the defendant, in addition to permanent place of residence, has a temporary residence in some other place, and he/she may assume, given the circumstances, that he/she will reside there for a longer period of time, general territorial jurisdiction lies with the court on whose territory the defendant temporarily resides.

In extra-judicial proceedings, territorial jurisdiction lies with the court that has general territorial competence in regard to the child.  

 

11. Which procedure applies in these cases? Is an emergency procedure available?
Actions in family proceedings are usually undertaken urgently. In such matters, the preliminary hearing must be held within fifteen days from the day the claim (joint suit) or the motion was received by the court (Family Act, 265/2). It is precisely because of this that the court will not separately serve the defendant with the claim for his/her response (Family Act, 248/1), but it will serve them the claim together with the hearing summons.

A second-instance court is obliged to render a decision on the appeal against the decision rendered in the first-instance proceedings within thirty days from the date on which it received the appeal (Family Act, 266).

 

12. Can I obtain legal aid to cover the costs of the procedure?
The court decides at its discretion on the costs of the proceedings in the status-related matters, taking into account the circumstances and the outcome of the proceedings.

In the Republic of Croatia, legal aid is regulated by the Legal Aid Act (OG 05/08).
Pursuant to Article 5, Paragraph 1 of this Act, legal aid is granted in all proceedings before courts involving decisions on existential issues of the beneficiary, including status-related issues.

 

13. Is it possible to appeal against a decision on parental care?
Yes, an appeal may be lodged against the first-instance decision stipulating which of the parents the child will live with and stipulating parental care. No review on this matter is permitted against the second-instance decision.

 

14. What should I do to have a decision issued by a foreign court recognised and which procedure applies?
The provisions on the recognition and enforcement of decisions rendered by foreign courts are contained in the Conflicts of Law Act (OG 53/91), Articles 86-97.

A decision of a foreign court equals a decision of a court of the Republic of Croatia and has legal effect in the Republic of Croatia only if it is recognized by the court of the Republic of Croatia. A foreign court decision includes court settlement as well.
A foreign court decision will be recognized if the person applying for its recognition submitted, with the decision, a confirmation of the competent court on the validity of the decision under the law of the country in which the decision was made.

The court of the Republic of Croatia will not recognize a foreign court decision if establishes, upon the appeal of the person against whom the decision was made, that this person could not participate in the proceedings for the reason of procedural irregularities.

In particular, it will be considered that a person against whom a foreign court decision was made could not participate in the proceedings, since the summons, claim or decision by which the proceedings had been initiated were not served on him/her, i.e. because no efforts were made to deliver the above-referenced documents to the respective person, unless this person participated in the litigation on merits in the first-instance proceedings.

A foreign court decision will not be recognized if in the same legal matter a court or other body in the Republic of Croatia has rendered a valid decision or if some other foreign court decision rendered in regard to the same matter is recognized in the Republic of Croatia.

The court will postpone the process of recognition of a foreign court decision if the proceedings on the same matter and between the same parties are underway before a court of the Republic of Croatia – until the valid closure of the proceedings.
A foreign court decision will not be recognized if it is contrary to the Constitution of the Republic of Croatia.
A foreign court decision will not be recognized if there is no reciprocity.

Reciprocity in regard to the recognition of a foreign court decision is presumed until proven otherwise, and if there is a doubt about the existence of reciprocity, the Ministry of Justice of the Republic of Croatia will provide a clarification.

15. Which law does the court apply in a proceeding where the child and the parents do not live in the Republic of Croatia or are of different nationality?
If the defendant does not have a permanent place of residence in the Republic of Croatia, jurisdiction in disputes on statutory child maintenance lies with the courts of the Republic of Croatia:

1. if the claim is filed by the child, and the child resides in the Republic of Croatia,
2. if the plaintiff and the defendant are the citizens of the Republic of Croatia, regardless of their place of residence, or
3. if the plaintiff is an underage child and a citizen of the Republic of Croatia (67/1, CLA).

In the cases where the defendant has no permanent place of residence in the Republic of Croatia, jurisdiction in disputes on statutory maintenance that do not refer to child maintenance lies with the courts in the Republic of Croatia if the plaintiff is a Croatian citizen permanently residing in the Republic of Croatia (67/2, CLA).

Jurisdiction in disputes on statutory maintenance of spouses and between former spouses lies with the courts in the Republic of Croatia if the spouses’ last joint place of residence was in the Republic of Croatia and the plaintiff still has a permanent place of residence in the Republic of Croatia at the time of trial (67/3, CLA).

Jurisdiction in disputes related to statutory maintenance lies with the courts in the Republic of Croatia if the defendant has property in the Republic of Croatia that can be used to collect the amount for maintenance (68, CLA).



Further information:
Family Act (Official Gazette: 116/03, 17/04, 136/04, 107/07)
Conflicts of Law Act (Official Gazette: 53/1991)
Ombudsman for Children Act (Official Gazette: 96/03)
Social Welfare Act (Official Gazette 73/97, 27/01, 59/01, 82/01, 103/03, 44/06 and 79/07)

International agreements:
Convention on the Rights of the Child (Official Gazette, International agreements 20/97)