Juridica Series No. 1 (2) – 2013 ISSN: 2285 – 8091 Page 48 Copyright  2013 Academica Science Journal. All rights reserve d. THE LEGAL PROTECTION OF… [617132]

Academica Science Journal
Juridica Series No. 1 (2) – 2013
ISSN: 2285 – 8091

Page 48 Copyright  2013 Academica Science Journal. All rights reserve d.

THE LEGAL PROTECTION OF CHILDREN AFTER THE
DIVORCE

Oana Voica NAGY,
Dimitrie Cantemir University, Bodoni Sandor 3-5, Tî rgu Mure ș, Mure ș, Romania.
Ioana Raluca TONCEAN LUIEREAN,
Dimitrie Cantemir University, Bodoni Sandor 3-5, Tî rgu Mure ș, Mure ș, Romania.

Abstract: The study presents aspects regarding the legal prot ection of adopted or
naturally born children of a family after the divor ce of their parents. These aspects will be
analyzed according to the different divorce forms t hat the spouses choose. We will
analyze the obligations that the spouses have towar ds their children after the dissolution
of their marriage but also the aspects that regard the possibility of commissioning these
children into placement or the parents’ consent for adoption. The exercise of parental
authority, the child’s home, the obligation to main tain and educate the children as well as
the stat allowance represent only a few of the aspe cts of special interest in case of the
dissolution of a marriage, when children were born of adopted.
Keywords: legal protection, child, divorce, placement, adopti on
INTRODUCTION
The dissolution of a marriage produces much more ef fects than the pure juridical one that simply regar ds the
ending of the marriage. So, in the situation when f rom the marriage have resulted children or the spou ses
have adopted ones, these have to decide for example over aspects like the legal obligation of maintain ing
and educate their children, the home of those child ren and over the stat allowance.
Aspects regarding the legal protection of the child as well as the legal relations between the parents and
their under aged children in case of divorce are pr ovided by the articles 396 – 404 of the Civil Code, the Law
no. 272/2004 regarding the protection and the promo tion of the children rights or by the Law no. 273/2 004
republished, regarding the procedure of adoption. T he Romanian legislator has brought a series of chan ges
in what regards the dissolution of marriage by adop ting the Law no. 287/2009 regarding the Civil Code, but
not only, considering that the spouses can choose b etween the dissolution of their marriage by mutual
agreement or in court. So, for the first time the l egislator introduced the dissolution of the marriag e on notary
or administrative way. This was a premier because t his procedure is known only in a relatively reduced
number of democratic states [1, p.1201].
1. THE SITUATION OF CHILDREN ACCORDING TO THE FORM OF DISSOLUTION OF
THE MARRIAGE
By the chosen form of divorce, the measures regardi ng the legal relations between the parents and thei r
children will be taken either by mutual consent of the spouses or by the court of law. According to th e 373 th
article the marriage can be dissolved by mutual agr eement, at the request of both spouses or at the re quest
of one of them when for solid reasons the relations between the spouses are seriously damaged and the
continuing of the marriage is no more possible.

Academica Science Journal
Juridica Series No. 1 (2) – 2013
ISSN: 2285 – 8091

Page 49 Copyright  2013 Academica Science Journal. All rights reserve d.

Also, the marriage can be dissolved at the request of one of the spouses after a facto separation that lasted
at least 2 years and not at last at the request of that spouse whose health makes the continuing of th e
marriage impossible.
1.1. The dissolution of the marriage in the court o f law
In the court of law the spouses can claim the disso lution of their marriage either by mutual consent, as we
mentioned earlier, or by fault. If the spouses agre e on the accessories requests regarding the exercis e of the
parental authority, their contribution to the child rising and education expenses the court will take act of their
agreement, otherwise the court will analyze the evi dences provided by the law in order to solve these
requests.
This last affirmation is provided by the 918 th article of the Civil procedure code, according to which the court
will also decide at request regarding the exercise of the parental authority, their contribution to th e child rising
and education expenses, the child’s home and the ri ght of the parent that did not get custody to have
personal relations with the child. According to the same article second alignment when the spouses hav e
under aged children, born before or during their ma rriage, or adopted ones, the court will decide over the
exercise of the parental authority, their contribut ion to the child rising and education expenses even if it was
not requested in the divorce application.
1.2. The dissolution of the marriage on notary or a dministrative way
The spouses can also request the dissolution of the ir marriage on notary or administrative way. The
dissolution of the marriage is not admissible on ad ministrative way when the spouses have under aged
children. But this is not an obstacle when the spou ses request the dissolution of the marriage on nota ry way.
So, according to the 375 th article second alignment of the Civil code the dis solution of the marriage is
possible on notary way even if the spouses have und er aged children, born within the marriage, outside the
marriage or adopted ones, if they agree on all aspe cts regarding the family name that they will have a fter the
divorce, the exercise of the parental authority by both parents, the establishment of the child’s home after the
divorce, the way of maintaining the personal relati ons between the separated parent and each one of th e
children, as well as the establishment of the contr ibution of the parents to the rising and education expenses,
teaching and professional training of the children. In such situations it is necessary to obtain a soc ial inquiry
report performed by the tutelary authority, report that will confirm the fact that the parents agreeme nt
regarding the exercise of the parental authority or the establishment of the child’s home is in its be st interest
[2, p. 158].
2. URGENT MEASURES REGARDING THE CHILDREN, THAT CAN BE TAKEN
DURING THE DIVORCE TRIAL
All along the divorce trial the court can take, on the way of presidential injunctive, temporary measu res
regarding the establishment of the under aged child ren’s home, regarding the obligation of maintenance , the
cashing of the state allowance for children and the use of the family’s home. In the case of divorce i t must be
taken into consideration that the urgency is presum ed and only the other two condition of the presiden tial
injunctive must be proven, namely the temporality a nd the of the lack of judgment on substance of the case
[3, p. 32].
3. LEGAL RELATIONS BETWEEN PARETNS AND CHILDREN
3.1. Establishing the children’s home
In case the parents do not agree on the under aged child’s home or if their agreement is not in the be st
interest of the child the court will be the one tha t will establish the child’s home at one of the par ents at the
same time it pronounces the divorce. There may be s pecial situations when the child’s home can be
established at their grandparents, at other relativ es or even at a legal institution of child’s protec tion if the
superior interest of the child is requesting that. But establishing the child’s home at these categori es of
persons is conditioned by their consent. This is an exceptional measure that is taken only when, for d ifferent
reasons, the child’s home cannot be established at one of the parents (for example the child’s parents work

Academica Science Journal
Juridica Series No. 1 (2) – 2013
ISSN: 2285 – 8091

Page 50 Copyright  2013 Academica Science Journal. All rights reserve d.

abroad, they provide occasional jobs that involve t he movement from one spot to another, the parents d o not
have a steadfast home and so on). These persons hav e the obligation to supervise the under aged child and
to accomplish all the actions regarding the health, education and teaching of the child. Yet, even if the child
lives at these persons, the rights regarding the ch ild’s goods, those regarding its person, others tha n those
especially provided for the persons that the child lives with are exercised by the parents. The parent s also
maintain in such situations the right to have perso nal relations with the child [4, p. 375].
In the doctrine was appreciated that the parent tha t the child lives with will be the one who will tak e care of its
education and rising. So, in order to establish the child’s home the age and gender of the child, its
attachment towards the parents, their financial and living possibilities as well as their moral conduc t will be
taken into account. Also it will be tried, as it is possible, to keep the brothers together, at the sa me parent
and only in special cases their separation is allow ed if it is in their superior interest [5, p. 251]. In the case the
spouses have more under aged children the contribut ion of the parent that does not live with them will be
distinctively established for each child.
3.2. The exercise of parental authority
According to the 483 th article first alignment of the civil code the pare ntal authority is the ensemble of rights
and obligations that regard both the person and the goods of the child and belong equally to both pare nts.
Consequently, now days, the exercise of the parenta l authority by both parents is considered to be a r ight
that belongs to the child. The child cannot be depr ived of this right but only for reasons justified b y its
superior interest.
According to the 397 th article of the Civil code the parental authority b elongs to both parents. The next article
provides the fact that, if there are no solid reaso ns, the court can decide that the parental authorit y will be
exercised only by one of the parents, the other par ent keeps the right to watch over the way of educat ion and
rising of the child as well as the right to consent to its adoption.
In this context, according to the 399 th article of the civil code, the custody court can d ispose the placement of
the child to a relative or another family or person . These persons will exercise the rights and obliga tions of
the parents regarding the child. The court will est ablish if the rights regarding the goods of the chi ld will be
exercised either by both parents or by one of them.
As we showed previously the child or children will be handed to one of the parents. This can be either the
parent who has lived constantly with the child but it can also be the parent against whom the divorce has
been pronounced, if the superior interest of the ch ild requires it.
3.4. The obligation of maintenance
In what regards the obligation of maintenance the c ourt of law will take act of the parents agreement about
their contribution to the under aged child’s rising and education expenses. If the parents do not agre e on
these aspects the court will be the one that will e stablish them. In general rule the parent that does not live
with the child is liable for paying a certain amoun t of its income [6, p. 177].
Also the parent that got custody of the child can g ive up the other parent’s contribution, with the co nsent of
the court if it can be proven that he has the neces sary material support in order to ensure the child with
steady good living conditions.
3.5. The state allowance
According to the Law no. 61/1993 each child, until the age of 18, benefits of state allowance. This al lowance
is paid to one of the parents or guardian, curator, to the person that the child was placed to or to t he
caregiver. After the child turns 14 year he can dir ectly benefit of the payment of the state allowance if he has
the legal guardians consent.
4. HEARING OF THE MINOR
At the divorce the custody court has to decide over the legal relations between the divorced parents a nd their
under aged children, taking into account the superi or interest of the child, the conclusions of the so cial

Academica Science Journal
Juridica Series No. 1 (2) – 2013
ISSN: 2285 – 8091

Page 51 Copyright  2013 Academica Science Journal. All rights reserve d.

investigation as well as, if it is the case, of the parents agreement. Also, the hearing of the under aged is
mandatory, the provisions of the 264 th article of the Civil code being applicable.
So, in the administrative or judicial procedures th at concern him, the hearing of the child that has t urned 10
years is mandatory. Yet, the child under 10 can als o be heard if the competent authority considers tha t it is
necessary to solve de case.
The right to be heard supposes the child’s possibil ity to request and receive any information, accordi ng to his
age, to express his opinion and to be informed of t he consequences this may have if his wish is respec ted as
well as the consequences of any decision that regar ds him. The child’s opinions will be taken into
consideration in comparison to his age and the degr ee of his maturity.
5. THE SITUATION OF THE ADOPTED MINOR
According to 471 th article, paragraph (1) of the Civil Code, the adop ter has towards the adopted child the
same rights and duties of the natural parent. If th e parents of the adopted child divorce, regarding t he
relation between them and the adopted child may con cern, by resemblance, the same legal provisions
referring to the dissolution of the marriage in cas e of minor children are applied [7, p. 462].
In case the adopter parent divorces the husband who isn't an adoptive parent of the minor, the parenta l
authority continues to be exercised by the adoptive one. In this situation, the divorce has no effect on the
child's name, on his nationality or on the link bet ween the adopter and the adopted daughter.
If during the procedure of adoption the family conf iguration changes through the divorce, the validity of the
certificate ceases by law. The General Directorate of Social Assistance and Child Protection of the ce rtified
family home will announce the court on the terminat ion of the validity of the certificate. In this cas e the
request for custody of the child for adoption or th e declaration of adoption is rejected, and each of the former
spouses can file a new application for assessment i n order to obtain the certificate, but this time it has to be
individually.
6. ESTABLISHING A SPECIAL PROTECTION MEASURE FOR TH E CHILD
After the divorce or during the process could appea r situations in which the minor can be handed into the
parent's care. Furthermore, according to the 39 th article of the Law no. 272/2004 regarding the prot ection and
the promotion of child rights, every child that is temporary or permanently deprived of his parents pr otection
or who in order to protect his interests cannot be left in their parents care, have the right to alter native
protection. This protection can consist in guardian ship, special protection measures or adoption.
According to 53 th article of the Law no. 272/2004 regarding the prot ection and promotion of children’s rights,
the child’s special protection measures are being e stablished and applied according to the individual
protection plan. This plan is complied by the Gener al Direction of Social Assistance and Child Protect ion in
the territorial jurisdiction where the child’s home can be found. The department has the obligation to prepare
the individualized protection plan immediately afte r receiving the request to establish a special prot ective
measure or, immediately after ordering the urgent p lacement of the child. When setting the goal of the
individualized protection plan, prior will be the r eintegration of the child in the family or if it th is is not possible,
the placement of the child in the extended family. The individualized protection plan may provide the child's
placement into a residential service, unless it cou ld be established the guardianship or could not be ordered
placement of the child to another person or family. According to the 53 th article, paragraph 3 of the Law no.
272/2004, the special protection measures of the ch ild, who has reached the age of 14, shall be establ ished
only with his consent. If the child refuses to cons ent, the protection measures are established only b y the
court of law, in duly justified cases, may override his refusal to express his consent towards the pro posed
measure.
6.1. The placement of the child
Special protection measures are the placement, urge nt placement and specialized supervision. The child ’s
placement is of temporary nature and can be ordered , according to the situation: to a person or family , to a
caregiver of residential service type, to a placeme nt center or a children’s reception center for urge nt

Academica Science Journal
Juridica Series No. 1 (2) – 2013
ISSN: 2285 – 8091

Page 52 Copyright  2013 Academica Science Journal. All rights reserve d.

circumstances, licensed under the law. When choosin g and assessing placement the following rules are
required to be respected: placement of the child, w ith priority to the extended or foster family, keep ing the
siblings together, facilitating parent’s rights to visit the child and maintain contact with him.
The child who hasn't reached the age of 2, cannot b e left in the care of a residential service, he wil l be
placed only in the extended or foster family. Excep tionally, the child's placement can be ordered in a
residential type placement, if he has serious disab ilities being in need of constant care in special r esidential
type services. The Court of Law will determine, if the situation requires it, the amount of the monthl y
contributions from behalf of the parents for child care, as determined by the New Civil Code. In this situation,
are to be applied the provisions of the 529 th article, paragraph (2) from the Civil Code which s et the gain
percentages that parents have to pay for child care , that is: ¼ for one child, 1/3 for two children an d ½ for
three or more children. The child's home can be, ac cording to case, at the person or family, care give r or
residential type service that takes care of the chi ld.
6.2. Urgent placing
Emergency placement is also a special protection me asure, of temporary nature, which is chosen in the case
of an abused or neglected child, as well as in the case of a found or abandoned child, in health units . These
situations are of a serious and imminent nature for the child in question that is why it is necessary to plea for
a rapid measure and procedure, from the behalf of t he authorities.
According to 64 th article, paragraph (2) of the Law no. 272/2004, in the case of an emergency placement of
the child, are to be applied the following rules, i n the case of child placement: the placement can be afforded
after case to a person or a family, to a care giver or a residential type service; the person who rece iving the
child in urgent placement has to be a Romanian resi dent and has to be evaluated by the Institute, for moral
values and material conditions that have to be fulf illed in order to receive a child in placement; dur ing the
placement period, the child's home is according to the case, at the person, family, social care giver or
residential type service that is taking care of him ; when establishing these measures some aspects are to be
taken into account: child placement, favoring the e xtended of the foster family, keeping the siblings together,
facilitating the parents right to visit the child a nd maintain the contact with him, the child who did n't reach yet
the age of 2 can be placed only in the substitute o r foster family, his placement in a residential typ e service
being forbidden [4, p. 721].
During emergency placement, pursuant to the 64 th article, paragraph (3) of the Law no. 272/2004, th e
exercise of parental rights is suspended. During th e suspension, the parental rights and obligations t owards
the child, are excised and fulfilled by the person, family, care taker or the head of the residential type
services, who received the child in urgent custody, the rights referring to the child's goods are exer cised and
fulfilled by the chairman of the county and the sec torial mayor of Bucharest. Special protection measu res are
temporary, therefore, if the circumstances that led to these measures have been modified or terminated , the
authorities are obliged to replace or terminate the m. The child, parent or other legal guardian of the child has
the right to appeal to the Court of Law.
After the cease of the special protective measures, after the reintegration of the child in the family , the public
service of social care, organized at the level of e very town and city, people in charge of social serv ices from
the local communal councils as well as the general direction of social assistance and child protection , in the
case of the sectors from Bucharest, from the parent s place are required to follow the child's evolutio n as well
as the way in which the parents exercise their righ ts and fulfill their obligations towards the child [4, p. 724].
7. THE RIGHTS OF THE PARENT WHO HAS BEEN SEPARATED FROM HIS CHILD
Normally, the child towards whom was taken a specia l protection measure has the right to maintain cont act
with other people if these people don't have a nega tive influence over his physical, mental, spiritual , moral or
social development. Furthermore according to the 16th article of Law 272/2004, the child who has been
separated from both or one of the parents, as order ed by the law, has the right to have personal and d irect
contact with both of the parents, unless it is con trary to the child's interests [4, p. 725]. These p rovisions are
consistent with 9th article section 3 from the Child's Rights Conventi on which provides that all parties shall
respect the child's right who has been separated by one or both of the parents, to have personal and d irect
contact with both of the parents unless it is contr ary to the child's interests.

Academica Science Journal
Juridica Series No. 1 (2) – 2013
ISSN: 2285 – 8091

Page 53 Copyright  2013 Academica Science Journal. All rights reserve d.

In the superior interest of the child, the parents are obliged to cooperate in such manor in order to take the
most appropriate measures in relation to him, not t o impair in any way, the natural course of the rela tionship
between the child and the parent at whom he lives.
In this respect, in the Romanian juridical practice , it has been decided that in the spirit of good fa ith and
understanding, in the superior interest of the chil d, primary, both parents should have maximum availa bility
and full cooperation, without any arguments, in ord er for the child to enjoy the presence, care and up bringing
of both parents.
8. AMENDMENTS OF THE MEASURES TAKEN IN REGARD TO TH E CHILD
According to article 403th of the New Civil Code, if the circumstances change , the guardianship court may
amend the measures that refer to the rights and dut ies of the divorced parents towards their minor chi ldren,
at the request of either the parents or other famil y members, of the child, of the child care institut ion, of the
public institution that is specialized on child pro tection, or that of the prosecutor.
CONLUSIONS
In conclusion, it can be stated, that first of all, the measures regarding child-parent relations afte r the divorce
and their juridical situation will be taken jointly by the parents or by the court of law. In all case s it is
considered first of all the superior interest of th e child, without making any difference between natu ral
children or adopted ones.
The child may be entrusted to one of the parents, t o another family member or another family. Any of t he
measures taken by the Court of Law regarding the mi nor children of the spouses, can be amended accordi ng
to the law, at the request of any of the parents, t he child, the child care institution, but also by o ther people, if
the circumstances that led to the adoption of these measures have changed.
BIODATA
– Oana Voica NAGY is Assistant professor, PhD student, at Dimitrie C antemir University, Bodoni Sandor 3-
5, Tîrgu Mure ș, Mure ș, Romania.
– Ioana Raluca TONCEAN LUIERAN is Assistant professor, PhD student, at Dimitrie C antemir University,
Bodoni Sandor 3-5, Tîrgu Mure ș, Mure ș, Romania.
REFERENCES
1. I. Le ș, Noul Cod de procedur ă civil ă. Comentariu pe articole, art. 1-1133 , Editura C.H. Beck,
Bucure ști, 2013.
2. A. Bacaci; V.C. Dumitrache; C.C. Hageanu , Dreptul familiei. În reglementarea Noului Cod civil , Edi ția a
7-a, Editura C.H. Beck, Bucure ști, 2012.
3. C.C. Dinu , Proceduri speciale în noul Cod de procedur ă civil ă, Editura Universul Juridic, Bucure ști, 2013.
4. T. Bodoa șcă; A. Dr ăghici; I. Puie; I. Maftei , Dreptul familiei , Edi ția a 2-a, rev ăzut ă și ad ăugit ă, Editura
Universul Juridic, Bucure ști, 2013.
5. D Lupa șcu; C. M. Cr ăciunescu, Dreptul familiei , Edi ția a II-a, emendat ă și actualizat ă, Editura Universul
Juridic, Bucure ști, 2012.
6. A. Bacaci; V.C. Dumitrache; C.C. Hageanu , Dreptul familiei. În reglementarea Noului Cod civil , Edi ția a
7-a, Editura C.H. Beck, Bucure ști, 2012.
7. I.P. Filipescu; A.I. Filipescu, Tratat de dreptul familiei, Editia a VIII-a rev ăzut ă și completat ă, Editura
Universul Juridic, Bucure ști, 2006.