March 2024 – Assigning sole custody of a minor to the father

Early March 2024, Decision No. 35/2024 was issued by the Single-Member Aegean Court of Appeals, by which the custody of a 7-year-old minor child was removed from his mother and assigned temporarily to his father.

More specifically, in the context of the parents´ dispute over the custody of their minor child, a first-instance decision had been issued (in 2023) awarding the custody of the child to both parents, with alternating residences (find here more details regarding this decision and its important assumptions). However, the above mentioned decision was not directly applicable, because due to its transformative nature (diaplastikos charaktiras); it does not develop its transformative action (ie shaping the situation at hand) before issuance of decision on the relevant appeal that was filed. Thus, a previous decision on interim measures still remained applicable, which awarded sole custody of the child to the mother and defined the framework of content with the father.

However, the defendant-mother of the minor, motivated by a proprietary perception of their minor child, having decided on the parental estrangement of the child from his father, began the systematic violation of the aforementioned decision on interim measures that defined the framework of his communication with his child, excluding any physical or telephone contact with him.

In order to prevent the plan of parental alienation that the opposing party had put forward, which was served by she filing an appeal for the disappearance of the above-mentioned first-instance decision by which the exclusive custody of the minor is awarded absolutely equally distributed to both of his parents (the issuance of a decision on this appeal is pending), our principal-father of the child filed an application to reform the decision on interim measures that determined his right to contact with his child, aiming to achieve, through the procedure of interim measures, the immediate application of a similar custody distribution framework (exclusive, equally distributed to both the parents), that is, before the issue of custody is finally decided by decision of the competent Court of Appeal.

Indeed, the Court (Court of Appeal, in the context of the revival of the pending proceedings after the appeal by the opposing party), in a fully founded in terms of legal and factual basis, important decision, reformed the earlier decision of interim measures of the Court of First Instance and decided on the immediate application of equal distribution of custody to both parents-parties (find here more details on the decision in question and its legal reasoning).

Ηowever, despite the above-mentioned reforming decision, the mother-opponent, persisting in her harmful to the best interests of the minor behavior, continued to refuse the application of the courts´ decisions and pretextually citing various alleged facts of child’s refusal to contact-reside with his father, tried again to frustrate the implementation of the equal distribution of custody, requesting with her relevant application the reform of the above appeal decision and the assignment to her of the exclusive custody of the child. Accordingly, given the continued violation of court decisions by the opposing party, which resulted in the father having a total of 7 months to see or hear his child, he requested that he be assigned sole custody of the minor child, otherwise restrictive measures be taken (which were specified in detail in his application), in order to make it really possible for him to exercise the functional right (both right and obligation) of custody of his minor child.

The reasons why the Single-Member Aegean Court of Appeal, with its decision No. 35/2024, accepted the application of our principal, according to its main basis, namely the assignment of exclusive custody of the minor to our principal-father, and reformed its earlier decision, consist of its assessment that the mother’s continued violations of the courts´ decisions, which have now resulted in the complete prevention of the exercise of the right of custody by our father-mandator, constitute a case of bad exercise of parental care on her behalf, in violation of article 1532 of the Greek Civil Code.

More specifically, the above-mentioned decision states that the opposing party-mother “continued systematically to obstruct the exercise of custody of the child by his father, in fact by creating situations of particularly violent and intense mental stress for her own child. The fact that the applicant, due to the actions of the defendant, could not even see his child for (7) seven whole months, i.e. from 15/6/2023-16/1/2024, while he cannot even see him to talk by phone and to communicate with him online, constitutes a clear case of bad and abusive exercise of parental care, on the part of the applicant-mother (article 1532 of the Greek Civil Code), since from the above it was conjectured that on the part of the applicant-mother: a) culpable non-compliance with courts´ decisions and orders and prosecutorial authorities concerning the child or to the existing agreement of the parents for the exercise of parental care, (article 1532 par. b. para. a of the Greek Civil Code), b) the disruption of the emotional relationship of the child with the other parent and his family and in any way causing a break in the child’s relationship with them, (article 1532 para. b. para. b of the Greek Civil Code), c) the culpable violation of the terms of the parents’ agreement or the court decision for the child’s communication with the parent with whom he does not reside and the obstruction of communication in any other way (article 1532 para. b para. c of the Greek Civil Code). In accordance with the above, this Court, exercising its discretion given to it by article 1532 par. 3 sub-paragraph a of the Greek Civil Code and taking into account primarily the interest of the child, judges that, even temporarily, the exercise of custody must be completely removed from the applicant mother and it must be given to the applicant father, while he will maintain communication with the mother, but without spending the night at her home, due to the risk that the applicant will not comply with the provisions of this decision and refuse to hand over the child to the defendant after the completion of the communication.“, while in order to ensure the faithful execution of the decision, a fine of 10,000 euros and 6 months’ personal detention was threatened against the mother-defendant.

Why is this decision extremely important

The presented decision is extremely important for the following reasons:

1. Despite the fact that, with the (not-so-recent any more) reform of the Greek family law (2021), the legislator wanting to align, on the one hand with the findings of modern science on the equally important position of both parents in raising the child, on the other hand with the data of modern social reality [from which emerges the father’s ever-increasing and equal participation in the upbringing of the child (after all, given that now the vast majority of mothers work, they do not devote all their time to the care of the child, compared to the past)], chose joint custody as its main and basic option, i.e. the joint exercise of the custody of the minor child by both his parents, this has not yet fully become a common property-conscience of the practitioners of law (Judges), who still in most cases of litigation between parents on the issue of custody, especially when the facts of a case are not fully and adequately presented by the legal representative of the litigant-father, give precedence, even even without justification, to the mother.
2. Even in cases where the Courts do not adhere to the scientifically outdated view of the general bio-social supremacy of the mother, which according to the modern findings of science (medical, pedagogical and psychological research) applies only to prime infancy, they overlook the fact that according to the law, the young age of the minor child and his gender are not a dominant factor in determining the best interests of the minor and that there is a duty of the Judge to respect the equality of the parents and not to discriminate because of gender, social origin or of their property-economic situation, and thus appear hesitant to proceed with the implementation of article 1532 of the Greek Civil Code (according to which in case of bad exercise of parental care by one parent, the Court may order any appropriate measure, among which the removal of custody from one parent and sole assignment to the other) to the detriment of the mother, even when such a thing clearly arises as a necessity from the facts of the case [thus the immediately preceding decision applicable to the judicial case (which was reformed by the decision commented on here), where although it recognized that the conditions of the law are met, it did not assign custody exclusively to the father)].
3. The result of this reluctance is the fact that the father is almost never given sole custody of the minor child, except in very limited-exceptional cases (e.g. when the mother is addicted to substances, etc.), or when the children are at a relatively mature age and can express an autonomous opinion about which parent they prefer for the exercise of their custody.

Thus, the decision commented on here, although fully in line with the letter and the spirit of the law, appears “bold”, only because it causes, perhaps for the first time so strongly, a breach in the aforementioned bad status quo mentality.