Obstructing the right of the parent without parental rights to have personal contact with their child is illegal.
The right of the child to have personal contact with both parents is widely protected in the national legislation, as well as on an international level. According to the provisions of Art. 124, Para. 2 of the Family Code the child has the right to have personal contact with their parents unless the court has ruled otherwise. The purpose of the regime of personal contact determined by the court is to provide and guarantee the protection of personal relations between the child and the parents, regardless of the reason for divorce. The leading principle, embedded in the case law of the European Court of Human Rights, is to protect the interests of the child to a maximum extent and to preserve the personal relations with both parents. The legislator does not allow restricting or obstructing of the right of the parent without parental rights to have personal contact with their child. The role of both parents is to cooperate in the observance and implementation with the regime.
How is the regime for personal contact implemented?
It is envisaged in the imperative provision of Art. 53, Para 3 of the Family Code that the parent without parental rights has the right to see and take the child, including during school holidays, official holidays, personal events of the child and other times, as the court has ruled. The forms of personal contact are short meetings or longer stays of the child. This way, the connection between the child and the parent without parental rights, and with which the child does not live permanently, is preserved. This also ensures the right of the latter to take part in the upbringing and education of the child.
The approved by the court regime for personal contact indicates the time, during which the child will live with the parent without parental rights. Respectively, the other parent has the obligation to hand over the child in the indicated hours and days. Vice versa – after the expiration of the provided by the court period, the parent without parental rights is obliged to return the child to the other parent. Taking and returning the child should be done voluntarily. This is because the child’s interests and relations with their parents are best preserved when there is no court or bailiff interference.
Often enough, however, due to deteriorated relations between the mother and the father, the approved by the court regime is not implemented. There are numerous examples in case law where both the parent obliged to hand over the child, and the parent obliged to return the child, deliberately violate and do not comply with the court decision about the regime for personal contact. The most frequently asked question in this situation is: “What can I do when he/she does not comply with the court decision and does not let me see my child?”
When parents cannot reach an agreement on how to carry out the determined by the court regime of personal contact and when their actions (or at least the actions of one of them) entirely contradict the child’s interests, the parent whose right is being obstructed can proceed to enforcement of the regime determined by the court.
Enforcement of an obligation to hand over a child
The procedure for enforcement of an obligation to hand over a child is arranged in detail in Art. 528 of the Civil Procedure Code. Before commencing enforcement proceedings, the parent without parental rights has to obtain a writ of execution against the other parent that does not implement the court decision. Only after that can the parent submit an application to the bailiff. On the basis of the application, to which the original writ of execution is annexed, the bailiff undertakes actions for the handing over of the child.
First and foremost, the bailiff sends an invitation for voluntary handing over of the child to the parent against whom the enforcement proceeding has been initiated. The invitation indicates the day and hour when the child will be handed over compulsory. The law requires that the invitation be given to the parent, where possible, two weeks, but no later than one week, prior to the date determined in it. The parent, who is given an invitation, has the opportunity to provide the bailiff within 3 days with the following information: 1. Are they prepared to hand over the child in the determined place and time; 2. Are there any obstacles for the timely execution of the obligation, and 3. When and where are they prepared to hand over the child.
Here we should consider and explain to both parents that the enforcement is directed at minors and juveniles, which could have a negative effect on their psyche. It should not be allowed for the mother and father to use their children as weapons in their personal “war”. That is why before and after proceeding with enforcement, the parents’ and the bailiff’s actions have to be in accordance with the child’s interests. The bailiff ought to apply Art. 15, Para. 6 of the Child Protection Act, according to which every time when a case is initiated before the court or another state authority, the Social Assistance Directorate has to draft and submit a report. The bailiff can also request cooperation from the Social Assistance Directorate. The Directorate’s employees, after contacting the parent against whom the enforcement proceedings have been initiated, can assist in the voluntary handing over of the child. When the parent who has the capacity of a “debtor” in the enforcement proceedings does not cooperate, the bailiff can impose a fine in the amount of BGN 400. This fine can be imposed multiple times. Furthermore, if the handing over is not done voluntarily, the bailiff can request the cooperation of the police and the mayor of the municipality and with their help can take the child by force and hand it over to the parent – “creditor”. It should not be forgotten that undertaking such actions with the participation of the police and other state authorities can cause negative effects on the child’s psyche.
What other legal possibilities exist?
When one of the parents deliberately obstructs the personal contact regime, the other can file a lawsuit on the grounds of Art. 59, Para 9 of the Family Code or on the grounds of Art. 127 in connection with Art. 59, Para. 9 of the Family Code and demand that the parental rights be granted to them or that the court alters the determined personal contact regime. In the event of significant change in circumstances, the determined measures regarding the exercise of parental rights, the place of residence of the child and the personal contact regime can be altered. According to the case law, there is a change in circumstances when: there is alienation of the child due to the fault of the foster parent in relation to the other parent and vice versa; one of the parents deliberately creates obstacles for the other parent to exercise their parental rights; the child is not returned after carrying out personal contact with the parent without parental rights; the measures and personal care for the child are not carried out. If any of the above-mentioned circumstances are estimated and if it is established that the circumstances were caused by the guilty actions of a parent, there is a huge possibility that the court could alter the decision for parental rights. The other alternative is that the court could expand the determined regime in favour of the parent who lodged a claim.
If the parent deliberately obstructs the implementation of the personal contact regime with the child, they may be held criminally liable. According to the provisions in Art. 182, Para 2 of the Penal Code, a parent or other relative, who does not implement or hinders the implementation of a court decision regarding the exercise of parental rights or regarding personal contacts with the child, is punishable with probation and a fine between BGN 2 000 and BGN 5 000. In particularly severe cases this person could face imprisonment for up to six months and a fine between BGN 5 000 and BGN 10 000.
The criminal proceedings are of private nature and begin with the submission of a complaint to the court. This means that not the Prosecutor’s office, but the affected person is the one that initiates the proceedings. If the complaint is admitted for consideration, the court on the basis of the gathered evidence will decide whether a crime has been committed, and if so – what punishment should be imposed.
After all we should always keep in mind that it is in the child’s best interest that the parents reach an agreement even with the price of mutual compromise, instead of them initiating court or enforcement proceedings which can ultimately worsen their relations and have a negative effect on the children.
Author: Nina Triondzhieva, Attorney-at-law