The problems with taking a child abroad after separation with the spouse.
According to statistics the percentage of marriages ending in divorce continues to increase – not only here but in most European countries. The marriage oath ‘until death do us apart’ is rapidly losing its sense. Despite their desire to move on separately, the divorced spouses have to communicate with each other for the sake of their child.
Without a doubt among the most complicated questions for the separated parents are the travelling and the stay of the child abroad.
In recent years the world has opened up to us. The globalization, Bulgarian membership in the EU, access to education in foreign schools and universities, affordable plane tickets, competitions between different tourist destinations and numerous international exchange programs have created many opportunities for our children to travel abroad.
According to Bulgarian law juvenile children travel abroad accompanied by both their parents and if this is impossible, they travel with one of them but with the written consent of the other. However, the dissolution of family relationships makes this consent unattainable and turns it into a tool for conscious torture. The lost trust between the ex-spouses makes them refuse – the reasons vary from personal revenge to fear of kidnapping or terrorist attacks. This way the seemingly harmless vacation in Greece can lead to strained nerves, cancelled reservations and ultimately – a ruined vacation.
What are the options that parents can choose from so that their relationship does not detriment their child?
Notarized letter of consent
The easiest and most reasonable option for insuring consent is with a notarized letter of consent from one of the parents for taking the child abroad accompanied by the other parent. When the relations between the ex-spouses are worsened this could prove to be quite difficult. Giving consent is practically impossible when a parent is not interested, cannot be found or is hiding.
It is of upmost importance that it should be known that the given consent can be withdrawn at any moment. This puts the other parent in a position of constant uncertainty. A sudden withdrawal of consent could ruin the planned vacation at the last moment.
Replacing the parent’s consent with the court
A slower, yet more stable way of regulating the relations between the former spouses regarding their child travelling abroad is providing consent by court order. The necessary personal documents for the trip could be issued in the same proceeding.
The jurisprudence imposed criteria based on which one parent is allowed to bring abroad the child despite the will of the other parent. The parent who needs consent deposits an application in the regional court in accordance to the child’s current address. The reason why the parent wants to take the child abroad, the time of stay there and the country which is to be visited are indicated in the application. The applicant must convince the court that the trip abroad is of the child’s interest. The arguments must be convincing because they will clash with the other parent’s arguments.
This proceeding is not formal – the serious resistance of the other parent who has the right to state evidence in an attempt to convince the court of the opposite thesis can be met. He or she can present a counterclaim for receiving assent to take the child abroad for himself or herself. In this case, the parent who initiated the proceeding will have to take a stance regarding the counterclaim of the other parent and to state evidence if he or she objects. So in practice, if the court recognizes both claims, each parent has the approved right to take the child abroad.
Although the Supreme Court of Cassation controls these claims, the law allows a preliminary execution of the verdict based on the judgment of the court. This way you have the opportunity to plan short-term future trips because the court could allow a preliminary execution with the enactment of the verdict in first instance.
The problems with the jurisprudence up until now
In many cases up until now the court has not been approached with requests for replacing the other parent’s consent for a particular trip rather than general requests without concretization of the countries and the period of time. This led to a contradictory practice of courts – some issued permits for unlimited periods and countries while others required exact dates for traveling and practically the child’s specific location in the foreign country. Regional practices began to distinguish from one another – for example, in some regional towns the requirements were very strict while in Sofia the practice was more liberal.
The mentioned controversies imposed an interpretative decision from the Supreme Court of Cassation which aims to unify the requirements for issuing allowances. With it the court decides that the request for allowance to travel must be specified. The following things must be indicated: a particular country or at least a number of countries which are to be visited; the time of the trip or at least a certain amount of time during which it will take place; the reason for the trip. This way a golden mean is found – the request is not too specific which would complicate its realization nor is it too extensive which would deprive the court of valuation whether the request is necessary. With its resolution the Supreme Court of Cassation outlined criteria which the courts must follow when issuing permits. It is accepted that a country which has unresolved damages from natural disasters or military conflicts is considered not to be of the child’s interest. It is not advisory to travel to a country where Bulgaria cannot practice control over the protection of the child’s rights – countries which are not members of the European Union, which are not involved in the 1980 Hague Convention on the Civil Aspects of International Child Abduction or which have domestic laws that repudiate the internationally recognized human rights. The Supreme Court emphasizes that going to these countries is not of the child’s interest because they pose a threat to his or hers safety.
The interpretative decision looks at the difference between a short-term trip and place of domicile of the child when it comes to the parent (who has custody) moving abroad. According to the Supreme Court of Cassation changing the place of domicile is essential and significantly affects the rights of the other parent. In this case the advantages and disadvantages of moving should be examined thoroughly. The influence over the child, keeping contact with the other parent and native country, preservation of national identity and so forth should be assessed. All of this should be compared to the advantages of culture, education and broadening of the child’s horizons during his or hers stay in the foreign country.
A way out of the dead end
The law forbids the child to be put in a position of “hostage” of one of the parents if the arguments for his or hers travel abroad are existent. The refusal of the other parent is not an unconquerable obstacle. The judicial protections gives the possibility of the court to replace his or hers consent even for more than one trip. This helps to plan short-term trips and education. The criteria is always the child’s interest which always includes communication with both parents.
Author: Plamena Vasileva, Attorney-at-law