Numărul 2 / 2005

 

CHALLENGES OF THE NEW FAMILY ACT OF SERBIA ESPECIALLY IN THE FIELD OF ADOPTION

Olga CVEJIĆ JANČIĆ

Proffesor,

Faculty of Law

University of Novi Sad

I

Abstract

This paper deals with the most important changes which have been made in the new Family Act of Serbia which was promulgated in February 2005 and which has come into effect on July 1st 2005. Special attention was paid to adoption in order to explain one very important institution - the protection of children without parents or parental care.

In marital law, one of the changes was the elimination of obligation of mutual faithfulness between the spouses, then changes regarding the provisions on divorce. Causes for divorce have remained the same: breakdown of marital relations and divorce by mutual consent. In the latter case, the consent is not merely an agreement on the exercise of parental rights (which can now be realized as joint exercise - joint custody), but implies the division of joint property as well.

Certain novelties have also been made by introducing mediation in family law proceedings in order to try to resolve marital problems and conflicts after divorce or annulment of marriage by alternative dispute resolution processes as alternatives to judicial or administrative proceedings.

The new law has introduced marital contract as a completely new institution, then it has equalized non-marital and marital cohabitation and made some changes concerning the obligation of maintenance support. There is a new provision which determines the minimal amount of maintenance support by establishing that it is equal to the compensation given to a foster child, which is periodically determined by the Ministry for Family Protection. The maintenance creditor can choose whether the support will be determined as a fixed monthly rate or percentage-wise with respect to regular monthly income of the maintenance debtor. In case he or she opts for the latter, alimony support can be between 15 and 50%.

Furthermore, in the field of paternity the general legal assumption of the previous law (like most contemporary laws) that the father of a child born in wedlock within the first 300 days following the end of marriage is considered to be the mother's husband from the marriage that has ceased, is no longer present. The new provision is also abrogation of deadline for the child's right to establish or contest his or her paternity. He or she could do that in any time in her or his life, without time limit.

The provisions regarding conception with biomedical assistance contain a completely new provision by which non-marital partner of the mother (besides marital one) is presumed to be the father of the child and if he has given a written consent regarding the conception with biomedical assistance, this presumption is indisputable.

Adoption is a way to establish a parental relationship with children without parental care. The only type of adoption is full i.e. unbreakable (permanent) adoption, whereas simple i.e. breakable adoption is abolished. For validity of adoption the child has to be younger than 18 years of age, whereas the adopters have to be a married couple or cohabiting heterosexual couples (with certain exceptions). Homosexual partners do not have any rights in our law. The adopted person in respect of the adopters and their relatives has the same rights and obligations as a child born in a lawful wedlock in respect of his father and mother and their relatives, except for the name. That is to say that the name of the adopted child could be changed, but it is not obligatory. Moreover, the adopter and the adopted child could not get married. Furthermore, the adopted child is equal in rights to inherit the adopters as the child born in a lawful wedlock. At the age of 15 the adopted child gets the right to know who its parents are.

The author then emphasizes new provisions on children's rights, especially some new provisions on the exercise of children's rights, in accordance with the European Convention, then new corpus of provisions on protection from family violence.

II

A) Marital law

In addition to certain less significant changes, such as the elimination of the obligation of mutual faithfulness between the spouses, some more significant changes have been made regarding the provisions on divorce. Reasons for divorce remain the same: the breakdown of marital relations and the agreement between spouses, the latter being much stricter according to the new law in comparison to former law. The condition for divorce is no longer only an agreement on the exercise of parental rights (which can now be realized as joint exercise - joint custody), but the division of joint property as well. The agreement on these matters must be made in written form, however there is no requirement for it to be certified by a state organ. The agreement on spousal maintenance support following divorce is not necessary.

Certain novelties have also been made by introducing mediation in family law proceedings. So, the spouses could accept the procedure of family mediation as an attempt at reconciliation and consensual termination of dispute. The main goal of family mediation for the spouses is to try to succeed to resolve their marital problems and conflicts after divorce or annulment of marriage by alternative dispute resolution processes as alternatives to judicial or administrative proceedings. After the proceeding of reconciliation of spouses failed they could continue by mediation in order to reach settlement. There are two types of settlements - one is in order to reach agreement on exercise of parental rights (that also can be joint custody) and other one, in order to reach agreement on division of joint marital property. Mediation is in the competence of the court or other services or institutions. The mediation courts could not take part in the same proceeding in order to provide fair and unbiased judgment.

Cohabitation between a man and a woman is equal in legal consequences to the marriage in case it lasts for a longer period of time and there are no impediments between them to conclude marriage. Such impediments are the following: the existing marriage of one or both cohabitants, close blood or in-laws relationship, minority, incapability of reasoning and so on, that is to say they are the same as for the spouses. In order to provide some protection to cohabiting partners it is not the best way to legalize it, because in case these conditions are not fulfilled, the cohabiting partners remain without any protection and rights. In case this situation happened with spouses, for example if uncle and nephew got married and if at least one of them was not aware of the existence of these impediments to their marriage, the innocent spouse would have some rights (i.e. maintenance) after the annulment of marriage.

B) Paternity and maternity

Furthermore, the provisions on determining and contesting of fatherhood have also undergone certain changes. The general legal assumption of the previous law (as well as most contemporary laws) that the father of a child born in wedlock within the first 300 days following the end of marriage is considered to be the mother's husband from the marriage that has ceased, is no longer present. This rule is still applicable only to children born in wedlock within 300 days following the cessation of marriage due to death of the mother's husband,under the condition that the mother has not re-married in the meantime. In other words, this means that if a marriage ended by divorce or annulment, a child born within 300 days following the cessation of marriage will be considered to be born out of wedlock and without a father.

Some of the more significant changes in this segment of the Act deal with the deadlines for the initiation of paternal disputes (for determining or contesting of fatherhood). Much like maternal disputes, there are no limits if the plaintiff is a child, while other subjects are limited by one year from the date they became aware of certain relevant circumstances (subjective deadline) or ten years from the birth of the child (objective deadline).

The provisions regarding conception with biomedical assistance contain a completely new provision by which non-marital partners, besides marital ones, are granted this form of conception, along with an indisputable assumption on the non-marital fatherhood of the mother's partner, if he has given his written consent regarding the conception with biomedical assistance.

Also new is the provision on the indisputable legal assumption that the mother of a child conceived with biomedical assistance is the woman who gave birth to it, while the motherhood of the woman who donated the egg cell (genetic or natural i.e. biological mother) cannot be determined.

C) Rights of the Child

This segment of the Act which regulates parent-child relations has been updated with a series of new so-called "children's rights" by which our legislation has put into conformity with international and European conventions on children's rights and particularly to the UN Convention on the Rights of the Child from 1989, the European Convention on the Exercise of Children's Rights from 1996 and decisions of the European Court of Human Rights.

One of the more significant novelties from this segment of the Act is the right of a child who is fifteen years of age and capable of reasoning to decide with which parent to live with and on the maintaining of personal relations with the parent that he or she does not live with.

Furthermore, the child has the right to maintain personal relations with relatives and other persons to whom he or she is particularly attached to, as long as this right is not limited by a judicial decision, as well as to give consent, if he or she is fifteen years of age and capable of reasoning, on the undertaking of a medical operation, as well as to choose which high school he or she will attend.

Besides the above mentioned, a series of so-called procedural rights of the child have also been provided. The most significant of these is that a child of ten years of age can freely and directly give his or her opinion in any court or administrative proceedings in which his or her rights are being decided upon, or can merely, by way of another person or institution, address the court or administrative organ and request help in realization of the right to free expression of his or her opinion.

 D) Parental Rights

Regarding the exercise of parental rights, there is a new provision providing the possibility for joint exercise of parental rights in cases when parents are separated. In such cases, parents ought to make an agreement on joint exercise of parental rights which should contain information on residence of the child. The same rule applies to both children born in and out of wedlock, while a decision on whether the parental agreement on joint exercise of parental rights suits the best interests of the child is always given by the court.

It is also worth to mention the provision addressing the possibility of the child to receive full legal capacity before adulthood. Up until now, this was only possible in cases where minors who are sixteen years of age or older and with the permission of the court seek to conclude marriage. The new Act provides the possibility for minors over the age of sixteen to become parents, providing that he or she has reached physical and mental maturity necessary to care for his or her own personality, rights, and interests independently. Permission to obtain status of an adult is decided upon by the court in non-contentious proceedings.

E) Adoption

1. Adoptive capacity of the child

Different to our former law according to which only a child younger than 5 years of age could have been fully adopted, now it is possible regardless of the child's age as long as the child is a minor. It is possible to adopt the child without parents (in case they died or are unknown) or the child without parental care (in case parents are deprived of their parental rights or legal capacity or they have left their child and their place of residence is unknown) as well as the child whose parents agree with the adoption. According to the former law, this was established only for simple i.e. breakable adoption, since it was not possible to fully adopt the child who has both live parents, not even in case they were ready to give consent to full adoption of their child.

A child cannot be adopted before it is at least three months old and a parent can give consent to adoption only when the child is two months old. The consent can be withdrawn within 30 days from the day it is given. A child older than 10 years of age who is capable of reasoning should give its consent to adoption. Without its consent the adoption is not valid.

The provision which sets the upper age limit for adoption is also new. The same as it was in the former law, the difference in age between the adopters and the adopted child has to be at least 18 years, but there is a new provision which establishes that this difference cannot be greater than 45 years. The European Convention on the Adoption of Children (1967)[1] provides, however, something else. Namely, article 7 of the Convention provides the following:

"A child may be adopted only if the adopter has the minimum age prescribed for the purpose, this age being neither less than 21 nor more than 35 years. The law may, however, permit the requirement as to the minimum age to be waived:

a. when the adopter is the child's father or mother, or

b. by reason of exceptional circumstances."

Certainly, it is a very interesting question why our legislator did not take care of the needs of harmonization of our law with the European Convention on the Adoption of Children (1967), having in mind the fact that Serbia and Montenegro is a member of the Council of Europe and supposing that the Convention mentioned above is going to be signed sooner or later, since, as it is obvious, the adopter cannot be younger than 21 nor older than 35 years of age which was not respected in our law, because according to our law it is possible that the adopter is e.g. 19 years old if he or she adopts a child younger than 1 year of age, as well as older than 60 years of age if he or she adopts a 17-year-old child, since our law only provides that the difference in age between the adopter and the adopted child is not less than 18 years nor greater than 45 years. The exception to this rule is possible in case the minister of family protection finds that it would protect the best interests of the child.

According to our law the child has the right to know the truth about his origins. If the child is older than 15 years of age, it has the right to take insight into the birth registry as well as other documents that refer to his origins.

2.       Adoptive capacity of adopters

According to our new law only the spouses can be the adopters, which was present in the former law for the full unbreakable adoption, but the new provision establishes that now cohabiting heterosexual couples can also adopt, which was not possible before. This possibility is not even provided in the European Convention on the Adoption of Children (1967). The rule still says that a single man or woman cannot adopt a child except if the minister of family protection allows the adoption because of special justified reasons.

Homosexual partners do not have any rights that would derive from their cohabitation, which means that they also do not have the right to adopt. In our country, there are even no such requests or doctrinal discussions about the rights of homosexuals.

The adopter cannot be a person deprived of his legal capacity or parental rights, a person suffering from the illness which can be harmful for the child nor a person sentenced for crime against marriage and family, sexual freedom and life and body.

The Family Act establishes the obligation for future adopters to attend the preparatory program for adoption issued by the minister of family protection. This is not necessary only in case the adopter is a spouse or cohabiting heterosexual partner of the child's parent.

The foreign citizens can adopt a child only if it is not possible to find adopters among domestic citizens and if the minister of family protection gives his consent to it. It will be considered impossible to find adopters among domestic citizens in case one year passes from the moment of registration of the child's data in Unique personal adoption registry. In case the minister of family protection finds it protects the best interests of the child, he can allow foreign citizens to adopt the child even before this period.

3.       Other conditions for adoption

Close blood relationship is an unavoidable obstacle for adoption, which means that adoption is not allowed between ancestors and descendants and between brothers and sisters as well as stepbrothers and stepsisters. Further blood relationship is not an obstacle for adoption, so aunt and uncle could adopt their nephews and nieces.

Adoption can be done by naming the adopters or it can be blank i.e. incognito when parents previously sign their consent to adoption without naming the adopters and simultaneously renouncing their right to know who the persons who adopted their child are.

The consent of the child's parents is a condition for validity of adoption except in case the parent is fully deprived of his parental rights, legal capacity or ability to decide about questions which substantially affect the child's life. In all of these cases when the consent of parents is not necessary, there has to be a judicial decision in which the parent is deprived of the former rights.

4.       Legal consequences of adoption

Adoption causes the end of parental rights of the child's biological parents except when the adopter is a spouse or cohabiting heterosexual partner of the child's parent. All mutual rights and obligations between the child and his relatives end as well and they are established with his adopters and their relatives, like in a biological parental relationship. This means that the adopted child and his descendants have the same rights and obligations in respect of their adopters and their relatives and vice versa like in relations between biological parents and their children. The exception refers to the personal name of the adopted child since it can keep the personal name used before adoption, so in this case the surname of adopters and the surname of the adopted child can be different, which is not possible with biological children since they must carry their parents' surname or if the parents' surnames are different the child must take the surname of at least one parent. A child older than 10 years of age has the right to give consent to the change of his surname.

The right of the adopted child to inherit its adopters and their relatives cannot be restricted or deprived, which was allowed in the former law in case of breakable adoption.

According to the new law the adoption is unbreakable. It can end only in case of absolute or relative invalidity of adoption which is a question to be decided by the court.

Adopters are not obliged to tell the child the truth about his origins, but it is recommended that they do it. The law provides that the clerk who works in the guardianship organ will recommend the adopters to tell the child the truth as soon as possible, but there are no consequences if they do not do so. At last, it is up to the adopters whether they will obey the advice of the Center for social work or keep the information on adoption as a family secret. It seems that this question deserves a thorough discussion on whether informing the adopted child, especially if adopted in its early age, should remain the right of the adopters or become their obligation and what, in this case, should be the priorities to be followed and the child's best interest to be protected.

Certainly, the child has the right to know the truth about its origins, our law establishes this explicitlyand if the child is older than 15 years of age and capable of reasoning it has the right to take insight into the birth registry, but there is a chance that the child never finds out about its origins during all his life if the adopters do not want it, especially because of the change in data written in registry books (where the data on biological parents are replaced with the data on the adopters). There are cases in practice when the adopters moved to another place after adoption so as to hide the truth about adoption. One of the possible solutions to this is to establish the right of the Center for social work to supervise the performance of the adopter's obligation to inform the adopted child of its origins, which would mean that this organ could ask for a report on this from the adopters. This is especially important in case the adopted child is very young and is not able to understand what is happening around it, whereas it is rather insignificant if the child is older and is aware of all the circumstances concerning its family status.

However, we should bear in mind that this is one of the most delicate questions in the field of adoption, since it is really not easy for the adopters to tell the child the truth, especially because the child can understand it as a defeat and it can provoke unforeseeable consequences not only concerning the relationship between the adopters and the child but its further life and development as well. There is neither simple and easy way to tell this to a child nor a way for the child to accept it painlessly - e.g. that his parents have deserted and neglected him, that they do not care for him or her at all or that they are mentally ill and incapable of reasoning, that they are in a sanatorium for the medical treatment or that they are deprived of the right to decide on important questions of the child's development and so on. In some cases telling the truth will not be a big problem if the way and time for it are carefully chosen - e.g. when the child's parents have died.

Still, it is very important to weigh out whether the child's best interest is to know the truth about its origins or perhaps it is his right to tranquil childhood, upbringing, education and development, since the truth about its origins can sometimes be very cruel, hard and misbalanced with the interests of the child. Anyway, although the situation concerning every adopted child is often very different, we think that it is better to tell the child the truth than to live all life in deceit and fear that the child will somehow find out the truth in an inadequate and perhaps very painful way.

Having all of these in mind and especially in order to help the child to accept the truth about his origins more easily and to alleviate the child's possible stress, grief and depression after revealing the information on his biological parents, our new law establishes the obligation of the registrar to send the child to psycho-social counseling or to some other institution specialized for mediation in family matters. Psycho-social counseling is a whole new item in our law, so in this moment it is very difficult to foresee to what extent it will be successful, because such psycho-social counseling offices do not exist in our country, which means that we do not have experience in this field. Anyhow, we shall hope that these offices will help the child to overcome problems concerning its origins and past more easily and support it adequately in its preparations for the future.

5.       Proceeding of adoption

Adoption has remained in the competence of the Center for social work. Before adoption, the Center is obliged to deliver the child to future adopters for a certain period of time, but not more than 6 months, so that they can adapt to each other.

During this period of mutual adaptation the Center is obliged to supervise the process of adaptation and estimate whether these concrete adopters are suitable to adopt the concrete child. Only when it establishes that both future adopters and future adopted child fulfill both the conditions of general and special suitability for adoption i.e. when it estimates that the adaptation process was successful will the Center for social work bring the decision on adoption.

However, this rule on obligatory previous adaptation between future adopters and the child is not applied in case adopters are foreign citizens. Is it then possible to say that equal legal protection is provided for all children without discrimination or children adopted by foreign citizens are children of secondary importance who do not deserve adequate care of our state organs? The question whether the solution in this case should have been sought certainly deserves attention and discussion. Perhaps competent organs of the state whose citizens are future adopters should supervise the process of adaptation or the solution could also have been sought in certain services of our diplomatic and consular offices, but in any case it seems that, regarding this solution, insufficient attention was paid to the interests of the child compared to the attention paid to other interested parties.

 

F) Guardianship

The more significant novelties in this segment of the Act refer to the fact that the function of the guardian is carried out on a fully voluntary basis. Close relatives who, pursuant to the previous law were obliged to accept the status of guardians, are no longer under this obligation.

Persons appointed the guardians are most often spouses, relatives or foster-parents, if they have necessary personal qualities and capabilities to carry out this duty. However, they cannot be appointed the guardians without giving their consent to it. This is certainly a positive development, since one can hardly expect someone upon whom this duty is imposed to carry it out in a proper way.

 G) Legal Obligation of Maintenance Support

The most significant change is that the marriage and non-marital union have been equalized in this domain as well, while there is a new provision regarding the determining of the minimal amount for maintenance support. According to the new Act, this amount is equal to the compensation given to a foster child i.e. persons in fosterage and it is periodically determined by the Ministry for Family Protection.

The basic criteria for determining the level of maintenance support are still the needs of the creditor and the capabilities of the debtor, taking the minimal amount for maintenance support into account.

The maintenance creditor can choose whether the support will be determined as a fixed monthly rate or percentage-wise with respect to regular monthly income of the maintenance debtor. In case he or she opts for the latter, the novelty refers to the calculating method and the overall percentages. While according to the previous Act, the calculation was done with respect to the gross income and was between 7 and 22%, now it is done with respect to the net income[2] and can vary between 15 and 50%.

H) Marital Agreement

The most significant change in this segment refers to the marital agreement, by which spouses, as well as future spouses, can arrange their property relations either on the basis of the existing or future property. The validity of such an agreement rests heavily on a strict statutory form, which means that it must be done in writing, certified by a judge, who in turn must warn the contracting parties that such agreement eliminates the regime of joint property.

This is all that is being mentioned regarding this institute of marital law, which has been unfamiliar to our legal system since the Second World War until now, and of which so much has been expected. It remains clear that the agreement can be made both before and after the conclusion of marriage. It seems that this is not even nearly sufficient and may lead to large disputes in practice. One particular question is whether the contract is essentially reduced only to the possibility of elimination of the joint property regime so that spouses can only agree that their incomes will be accounted to their separate property or there are other possibilities as well. The next question is how to secure the protection of the weaker side which could possibly, in order to get married, accept to sign the marital agreement which would not suit his or her best interests. Still further, whether a dowry agreement is allowed, as well as a number of other questions which arise from such a meager and insufficiently developed provision on marital contracts. It seems that this issue should be approached in a much more studious manner and have much more attention devoted to than this Act has done.

Among the provisions regulating property relations of children and parents, the most significant novelty is the right of residence granted to children and parents exercising their parental rights in the residence of the other parent, if neither the parent nor the child has property rights with respect to the available residence. This right lasts until the child reaches adulthood.

I) Protection from Family Violence

This segment of the Act is new and covers the definition of family violence and acts considered as violent, then designation of persons considered to be family members, as well as measures which can be undertaken.

As violence is considered any behavior by which one family member endangers the physical integrity, mental health and tranquility of another family member.[3]

Persons considered as family members are enumerated in the Act.[4] It is understood that any family member may appear as the perpetrator or victim, regardless of whether being a man or woman, younger or older, etc.

 Protective measures against family violence which can be issued by the court are as follows: order of expulsion from the family apartment or house, regardless of property or rental rights, restraining orders for family members forbidding him or her to approach another family member within a certain distance, forbidding access to areas near the place of residence or work of a family member and forbidding any further harassment.

Summary

The new Family Act of Serbia (2005) has introduced some important changes in our legal system in order to modernize our family law. In this paper the attention was paid to these changes, with special regard to the adoption in order to explain one very important institution - the protection of children without parents or parental care.

In marital law, some of the changes include the elimination of the obligation of mutual faithfulness between the spouses and changes in the field of divorce. The causes for divorce are still the breakdown of marital relations and divorce by mutual consent. In the latter case the condition for divorce is an agreement on the exercise of parental rights (which can now be realized as joint custody) and on division of joint property.

In order to resolve marital problems and conflicts after divorce or annulment of marriage by alternative dispute resolution processes, our new law has introduced mediation as an alternative to judicial or administrative proceedings.

The new law has also introduced the marital contract as a completely new institution, then has equalized non-marital and marital cohabitation and has made certain changes in the field of maintenance support. There is a new provision regarding the determining of the minimal amount of maintenance support which is equal to the compensation given to a foster child. The maintenance creditor can choose whether the support will be determined as a fixed monthly rate or percentage-wise with respect to regular monthly income of the maintenance debtor. In case he or she opts for the latter, alimony support can now be between 15 and 50%.

Furthermore, in the field of paternity the general legal assumption that the father of a child born in wedlock within the first 300 days following the end of marriage is considered to be the mother's husband from the marriage that has ceased, is no longer present. The child has the right to establish or contest his or her paternity in any time in her or his life, without time limit.

New provision is also the one which establishes that non-marital partner of the mother (besides marital one) is presumed to be the father of the child in case medical assistance regarding conception, and if he has given his written consent with biomedical assistance, this presumption is indisputable.

Our new legislation recognizes only one type of adoption i.e. full or unbreakable (permanent) adoption. For validity of adoption the child has to be minor, whereas the adopters have to be a married couple or cohabiting heterosexual couples (with certain exceptions). Homosexual partners do not have any rights in our law. The adopted child in respect of the adopters and their relatives has the same rights and obligations as a child born in a lawful wedlock in respect of his father and mother and their relatives, except for the name. That is to say that the name of the adopted child could be changed, but it is not mandatory. Moreover, the adopter and the adopted child could not get married. Furthermore, the adopted child is equal in rights to inherit the adopters as the child born in a lawful wedlock. At the age of 15 the adopted child acquires the right to know who its parents are.

The author then emphasizes new provisions on children's rights, especially some new provisions on the exercise of children's rights, in accordance with European Convention, than new corpus of provisions on protection from family violence.

 

[1] European Convention on the Adoption of Children , No 58 brought by Council of Europe on 24 . IV. 1967

[2] I.e. the regular monthly income of the debtor following taxes and payment for mandatory social security, as stated by the new Act.

[3] The following acts are especially considered as family violence: 1. inflicting or attempting to inflict physical harm; 2. causing fear by threatening to kill or inflict physical harm to a family member or person who is close to him or her; 3. forcing someone to have sexual relations; 4. prompting or having sexual relations with a person who is under the age of fourteen or is infirm; 5. limiting the freedom of movement or communication with third persons; 6. insulting, as well as any other insolent, inconsiderate and malicious behavior.

[4] The following are considered as family members: spouses or former spouses, non-marital partners (both current and previous), children, parents and other blood and adoptive relatives and in-laws as well as persons in a sustenance relationship, persons living or who have lived in the same family household and finally persons who used to be or still are in an emotional or sexual relationship, or who have had a child together or are on their way to having one, despite never having lived in the same family household.

 

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