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COVID-19 and Exercise of parental responsability

Private Clients

17/04/2020

The COVID-19 epidemic has led the Monegasque authorities and those of the neighbouring countries to take drastic health and legal measures to slow down the spread of the disease. These measures include limiting travel to what is strictly necessary or unavoidable, although they provide for an exception with respect to "travel for compelling family reasons as well as assistance to vulnerable persons or childcare".

All of these measures have an impact on separated parents, and it is worth considering the difficulties that these could cause.

The exercise of access and accommodation rights

In application of the exceptional measures adopted, children are meant to stay with the parent with whom their residence is fixed, without travelling, being moved, picked up and then brought back.

The exercise of access and accommodation rights which, in the best interest of the children, enables them to maintain a link with the other parent, runs against a higher public health imperative of social distancing and very strict travel restrictions.

For these reasons, the right of access and accommodation must be exercised in accordance with health regulations, that is by:

  • limiting the child's travels, especially over long distances; 
  • preventing the child from taking public transport to go from one parent's home to the other;
  • avoiding any contact between the child and vulnerable people; and
  • preventing the child from meeting people with COVID-19 symptoms.

Thus, short trips do not give rise to any difficulties at present.

On the other hand, it is hardly conceivable to let children travel using public transport, whatever the distance, or to inflict on them too long a journey at all costs.

For parents who live far away from one another, the interest of the children implies avoiding travels and the resulting fatigue, as well as exposing them to geographical areas which are more dangerous from a sanitary perspective.

Denying the separated parent's right of access and accommodation

It is prohibited by law to refuse without just cause to hand over a minor child to the person who has the right to see him or her.

However, such objection could currently be justified by the need to comply with health regulations and particularly if:

  • the distance between both parents is significant and requires the child  to travel using public transport for a long trip;
  • one of the parents or the child has symptoms; or
  • a person who is ill lives in the home of one of the parents ...

If the objection is not justified by the need to comply with the above-mentioned health regulations, the parent will be at risk of a criminal complaint for failure to present the child.

The case of alternating residence

In case of alternating residence, both parents are referents, and generally share the time of residence in a geographical framework of direct proximity. Neither parent may take precedence over the other. The alternating residence must then continue to be complied with.

On the other hand, it may be possible to consider that the separated parents agree to change the frequency of the transfers to make them less frequent, i.e. every fortnight instead of every week.

In the temporary absence of judicial determination of the habitual residence of the children and the right of access and accommodation of the separated parent

In this case, the rights of both parents are equivalent. The usual practice should therefore be followed, since it would be difficult to obtain a court decision on an emergency basis. For now, priority is given to serious matters.

Should the usual practice not be followed for questionable or unjustified reasons, the separated parent who is denied access to his child will have to demonstrate a willingness on the part of the other parent not to comply with his parental rights. Such behaviour may be sanctioned by the court.

Child support

Child support is a maintenance obligation that takes priority over all other debts and financial commitments. It must therefore be paid in priority.

Its amount cannot be changed without a court decision, and failure to pay may lead to civil and criminal sanctions.

Authors

The picture of Christine Pasquier Ciulla
Christine Pasquier Ciulla
Avocat Associé | Partner
Monaco
The picture of Mona Guezguez
Mona Lagrange Guezguez
Middle Associate
Monaco