The children care represents a priority of each state policy. In this context, the legislation of the given field was adjusted to the requirements of the United Nations Convention on the Rights of the Child and other international treaties ratified by the Republic of Moldova. The substantive law in the procedure of identifying the child’s residence establishes the rules of evaluation of the place which will constitute the child’s residence. If parents cannot agree amiably whom the child will live, the only possibility of solving the problem is addressing the court. The procedure of establishing the child’s residence is regulated by the provisions of the Code of civil procedure. As far as in this case there is law litigation – the plaintiff interest lays in the fact that the child’s residence should be established with him/her and the defendant interest - that the plaintiff pretentions should be rejected. From the judicial practice of the Republic of Moldova regarding the establishment of child’s residence we mention that there are cases of condemning the state to ECHR. The court decided that the competent authorities should take all necessary, reasonable applicable measures for re-establishing the relation between plaintiff and her son as long as the court decides with whom of the parents the child will live. In the given research we aim to analyze the national procedural peculiarity of establishing the child’s residence as well as the concordance with the community normative provisions.
Keywords: Procedurechild’s residencechild carelegislationpublic authority
Inter-family conflicts according to the delegation of responsibilities for child protection, generates
psycho-socio-legal problems affecting the child's welfare. Analyzing the situation that was created at
the moment regarding the rights of the child and the work of the courts and public authorities on this
section were found a number of uncertainties and violations of mandatory provisions proclaiming the
supremacy of the rights and child’s interests.
This work aims to be one which supports and promotes the collaboration and cooperation between
the family as an institution and the state authorities or institutions of the civil society, in protecting the
child’s interests in relation to parents' interests, as a so necessary - partnership. From the fact that an
analysis of all areas in which those infringements originate would have been too complex and difficult,
we tried to elucidate the problematic issues in a narrower field, and namely - in the processes for
determining the child’s residence. The emphasis in this study is on the role of the public authorities in
such categories of litigation and we tried to elucidate all the aspects of the procedural issues of
determining the residence of the child.
child’s residence and to analyze the problematic aspects of the proceedings, in the context of
determining a number of uncertainties and violations of the procedural provisions.
- The identification of procedural position of the guardianship authority in the process of establishing
the child’s residence;
- The analysis of legal nature of the of the guardianship authority’s approval in the process of
establishing the child’s residence;
- The analysis of solving cases regarding the establishment of child’s residence.
effectual normative acts, primary documents as well as analyze is of the court decisions of the Republic
of Moldova. The selection of this methodic lowed: the clarification of the procedural position of the
guardianship authority in the course of determining the child’s residence; the identification of the legal
nature of the guardianship authority’s approval, issued in case of determining the child’s residence; the
determination of the legal precedents for determining the residence.
The procedural position of the guardianship authority in civil proceedings regarding the establishment of the child’s residence
According to the law of the Republic of Moldova, the guardianship authorities participate in
lawsuits related to the determination of the child’s residence (art. 63 par. (3) of Family’s Code),
deprivation of parental rights (art. 68 par. (3) of Family’s Code), the disputes regarding the child’s
education (art. 73 par. (1) of Family’s Code), other situations.
Therefore, the guardianship authority, participating in the administration of justice in cases where it
is heard, is called the participant of the lawsuit. Thus, we conducted a broad distinction within the
concept of participant in lawsuit, the role of this body depending on the tasks they perform under the
law, especially in the process of regarding the child’s residence.
After analyzing the theoretical aspects of the procedure subjects, and according to jurisprudence,
(Decision from August 26, 2014) the guardianship authorities participate in the lawsuit as an intervener
accessory. According to some statistical data, the study conducted by Centre for Human Rights (2013),
reflecting the situation for 2012 and the first half of 2013 in 1982 of cases regarding the determination
of child’s residence, the guardianship authorities participated in the examination of cases as an
intervener accessory, a practice that we consider absolutely wrong. In accordance with the art 67 par
(1) of Code of Civil Procedure (CCP), the person interested in a process started between other people
can intervene with the claimant or defendant until closing a judicial decision rendered in the first
instance, if the judgment could affect the rights or obligations to one side. In this sense the law also
states that it can intervene in the process at his request, of one of the parties or of the court office (art.
67 par (2), (3) of CCP). So, according to the author Elena Belei (2014: 186) characteristically for the
interveners the accessory represents rights:
They are not alleged subjects of the disputed material report;
They don’t submit their claims on the subject of the dispute;
They participate in the process of the claimant or defendant’s side.
From the mentioned legal concept and the legal characters given to the concept of “intervener
accessory”, it is clear that the guardianship authorities may not have an intervener accessory in the
process, respectively, their attracting practice in the process as an intervener accessory, is wrong.
According to doctrinaires’ opinion in the civil procedure, Belei E., (2014: 213) the guardianship
authorities within the lawsuit can have only the procedural quality of public authority which
participates in the lawsuit to submit conclusions, in accordance with the art 74 of CCP, we consider
valid and which represents the ideal solution for this problem. As we have mentioned previously, in
accordance with the art 63 par. (3) of Family’s Code regarding the determination of child’s residence,
the court will require also the notice of the guardianship authority on whose territory the residence of
each parent is. At the same time, in accordance with art. 74, par. (1) of CCP in cases established by
law, the proficient public authorities, on his/her own initiative, at the request of the participants to the
process or from the court office, can intervene in the process before the judicial decision in the first
instance, as well as at the Appeal court, in order to submit conclusions, in accordance with the function,
for the defense of rights, freedoms and legitimate interests of other persons, state and society. Taking
into account the art 63, par (3) of Family’s Code confirmed with art. 74, par. (1) of CCP shows that the
guardianship authority participates in the process just to talk about the living conditions of each parent
that are involved in the litigation regarding the establishment of child’s residence, so the guardianship
authority has only the procedural interest not being affected by the court judgment.
Once the guardianship authority intervened in the process at his request, or by the court office or by
the participants at the process, the judge that examines the case will order that the authority elaborates
the notice regarding the living conditions of the parents (in accordance with art. 63 of Family’s Code),
respectively will have to decide the continuity of the process until the presentation of the given notice
by the guardianship authority.
In this context, in accordance with art.262, let. d) of CCP, (Code of Civil Procedure, nr.
225/30.05.2003) “The process is suspended: […] until the presentation in court […] of the report of the
guardianship organ […] – in cases prescribed by legislation.
Thus, the judge, at the stage of preparing the cause for legal debates will send to defendant, as well
as to the responsible guardianship authority the copy of the request for summons, regarding the
determination of child’s residence, besides, he/she will warn the guardianship authority about the fact
that he/she is obliged in accordance with law to present at the hearing the notice regarding the
inspection of the parents’ living conditions – parts of the process, and as we mentioned, the judge may
suspend the process until the presentation of the given notice by the guardianship authority.
The judicial feature and the procedural statute of the notice of the guardianship authority issued in cases of establishing the child’s residence
The doctrinaires classify differently the litigations regarding the child’s rights and interests. The
author, Il’ina O.Iu. (2006), the litigations regarding the child’s rights and interests could be classified in
the following way: litigations regarding the express violation of the child’s rights and interests (art.53
par (1) of Family’s Code); litigations appeared during the child education: regarding the determination
of child’s residence (art. 63 of Family’s Code), regarding the exertion of parental rights in cases when
parents are living separately (art. 64 of the Family Code), regarding the remove of impediments of
communication with child (art. 65, par (2) of the Family Code), regarding the depriving of parental
rights (art. 67 of Family’s Code), etc.; other litigations considering the family relations: the dissolution
of marriage (art. 36-37 of Family’s Code), the declaration of marriage nullity (art. 41 of Family’s
It is important to mention that in all the enumerated cases, the guardianship authorities participate
obligatory in the trial process regarding the given litigation.
In accordance with the Family Code and other legal acts in force which control the problem of
determination the child’s residence we can highlight some peculiarities regarding the notice of the
guardianship authority issued in such cases as:
child’s residence with him/her can be issued just by the guardianship authorities. Thus, no other organ
of public administration has the right to issue the notice that could serve as a base for the judicial
decision regarding the determination of the child’s residence, or in case that a certain organ issued the
notice and it was considered for the judicial decision, the last will be liable to disposal.
This peculiarity results in accordance with the art. 63 Of Family’s Code. We reiterate the fact that,
in the light of amendments to the Family Code regarding the exclusion of Chapter 17 which provided
the organs considered as guardianship authorities and their attributions, will be applied, regarding the
determination of the guardianship authorities, stipulations of Law regarding the social protection of
children in risk situation and children separated from their parents.
parents, whereas the court should evaluate to whom of the parents is more rationally, according to the
material conditions and other criteria, to determine the child’s residence. We will mention that within
the Supreme Court of Justice there is a right application, (Decision of Supreme Court, November 6,
2013) regarding the lack of cases of assessment by the guardianship authorities of the living conditions
of one parent – in such cases the Supreme Court of Justice (on January 22, 2014), quashes available
acts of the inferior courts and sends them to retrial, because the assessment of the living conditions of
both parents represents important circumstances of the case that should be proved and investigated by
the court which examines the substance of case.
plaintiff, as well as of the defendant, the notice should be elaborated by the same guardianship
authority. This peculiarity, or rather requirement towards the elaboration of the notice by the
guardianship authority, is apparent from the fact that the guardianship authorities examine not only the
parents’ living conditions but also assess the respective conditions and pay attention to the court of the
opportunity of determination the child’s residence within a certain parent.
The Russian author Anatoliskaia M. V. (Anatoliskaia, et. al., 1996),mentions that doctrine and
practice consider that the investigation of the living conditions of parents and elaboration of the notice
should be realized by the same guardianship authority even if the parents have the residence in
different places or even countries. The legislation of the Republic of Moldova contains a little confused
situation, because the stipulations of the art 63 par (3) of Family’s Code mention that “in determining
the child’s residence, the court will request the notice of the guardianship authority in whose territorial
area the residence of each parent is”. At least, according to the Law, in case that the parents have
different residences on territorial area of different guardianship authorities, each of them should speak.
We consider that, the position sustained by the authors of the Russian Family Code Commentary is
more grounded and closer to the child’s interests.
guardianship authorities should assess not only the existence of the given residence and his/her material
conditions but also they will take into consideration all circumstances related to the parent: how much
does he/she cares for the child, how well does he/she provides for the child, what education the child
gets and what kind of relations are established between parent and child.
conditions of the parents and obligatory this/these person(s) should be present at the court trial having
the seal of the respective guardianship authority.
examination process on determining the child’s residence represents evidence, respectively it should
respect certain requirements and it will be evaluated by these qualities. Thus, the guardianship
authority notice represents an official writing, because it comes from public authorities, responsible
officials and expresses the mandate of authorities or persons that issued them while on duty. At the
same time, the guardianship authority notice is writing with an informational content because its
content doesn’t have expressions of will, limiting to rendering descriptive, confirmative information
related to circumstances important for the case settlement – parents’ living conditions. Also, we will
mention that even if the notice of the guardianship authority represents writing in the legal procedure, it
has a special statute because it represents the materialization of the opinion sustained in the procedure
by the representative of the guardianship authority.
Regarding the assessment of the guardianship authority notice, we reiterate that its presentation in
the process is obligatory. However, it will not be prior in relation with other circumstances or
evidences. The family law act (no. 1316 from 26.10.2000), mentions us expressly the criteria which
will be taken into consideration by the court, alongside the conclusions exposed by the guardianship
authority during the process – the child’s affection towards each parent, towards brothers and sisters,
child’s age, parents’ moral qualities, existent relation between each parent and the child, possibilities of
the parents to create adequate conditions for child’s education and development (occupation and
working regime, living conditions, etc.).
The determination of child’s residence is not a problem that can be evaluated as being a
determination of child in space – where exactly or at which parent the child’s residence should be
registered, it is rather a solution given to the request with whom of the parents the child will live
finally. At the same time, the determination of child’s residence with one of the parents doesn’t lead to
the loss of parental rights and obligations of the other parent with whom the child won’t live.
Accordance with the art 64 par (1) of Family’s Code, the parent who lives with the child, doesn’t have
the right to impede the contact between the child and the other parent that lives separately, except the
cases when the behavior of the last is detrimental to the child interests or presents danger for the child
physical and psychic state.
The litigation regarding the determination of child’s residence can be examined repeatedly because
whenever the circumstances can change, respectively, the repeated request regarding the determination
of child’s residence may be submitted. Thus, the parent that has improved its conditions of living can
afterwards address to the court a repeated demand in order to request the determination of child’s
residence with him (her) self. So, when we speak about such litigations, the court doesn’t have the right
to refuse the demand because the given litigation between the parties has been already examined.
From the analysis of the legal nature of the guardianship authority notice, we can conclude that in
the national legislation there are not clear aspects related to the content of the notice of the
guardianship authority having a summary settlement in the national legislation.
At the moment, in the national procedural legislation there are no stipulations that can allow the
courts to elucidate the psychological aspects of the child or parents’ personality in the process
regarding the determination of child’s residence but also at the examination of other litigations related
to the child. Thus, a solution in this direction may be the introduction into the Code of Civil Procedure
the stipulations which will establish the participation in litigations where are involved the children of
the specialists with particular psychological knowledge. Nowadays, the procedural legislation
establishes an express list of situations where the specialist can be introduced in the process, and where
is missing the stipulation regarding the calling into the process of the specialist-psychologist in the
litigations on child rights and interests, fact that will be welcomed in our case.
The establishment of legal precedents of the residence establishment
Taking into account the fact that the resolution of litigations regarding the child’s residence
establishment represents one of the main guarantees of defense of children interests, it is necessary to
mention the implication of the court in respecting the legislation in force. Examining the litigations, the
court will apply the stipulations of the International Convention of 20.11.1989 regarding the children
rights adopted on November, 20, 1989 at New-York, in force for the Republic of Moldova from
February, 25, 1993, the Law regarding the child rights nr. 338 of December, 15, 1994, the Constitution
of the Republic of Moldova, the Family Code, adopted by the Law nr.1316-XIV of 26.10.2000, in
force from April 26, 2001, the Civil Code, the Code of Civil Procedure and other normative acts which
regulate this kind of cases.
In accordance with art.39 par (5) of CCP, the action of marriage dissolution may be initiated also in
the court from the plaintiff residence if he/she takes care for minor children or if his/her movement to
the court of the defendant residence (Decision of April 14, 2013), meets grounded difficulties.(Based
on materials of the case results that Stepanenco Silvia addressed to the court Soroca with the demand of
invitation to the process against Stepanenco Veaceslav regarding the marriage dissolution and child’s
residence establishment). Reporting the mentioned normative stipulations on the facts of the case, the
civil, commercial and administrative College of the Supreme Court of Justice retains that the plaintiff
(in this case – Stepanenco Silvia), exercised her right to address with the present demand in court office
from her residence – according to the territorial competence at the plaintiff choice.
A serious problem for the Republic of Moldova is the migration of citizens to find a good job in
order to ensure good living conditions for him (her) self and his (her) family members. Related to the
court decisions (Decision of November 6, 2014), with which of the parents the child’s residence will be
established, the legal precedent pointed to the fact that the decision will be taken according with the
child superior interest, indifferently if the parent’s residence is in the country or abroad. The majority
of decisions are taken in favor of the mother (Decision of Fenruary 19, 2014), when the child is in his
early age and needs maternal care and affection (the case Carabăţ L.). However, the child’s residence
can be established at his father’s place, if it is identified that he supported the child financially (the case
Once the residence with one parent is established, it may be claimed for the other parent to pay the
alimony for the minor child maintaining. Often, this is one of the motives invocated in counterclaim
demand regarding the child’s residence establishment with the defendant (the case Celpan V.)
(Decision of November 6, 2014). Here, the civil, commercial and administrative Council of the
Supreme Court of Justice mentions that in accordance with the ECHR law, the appeals should be
effective, i.e. to be able to offer the redress of the situation presented in the request (the case Purcell
against Ireland, April 16, 1991), while in the appeal declared by Celpan V., there are no such aspects.
From the legal practice of the Republic of Moldova regarding the child’s residence establishment we
will mention that there are cases of conviction of the Republic of Moldova to ECHR (of November 04,
2014), as for example the case Tocarenco V. Citing the art. 8 (the right of respecting the private life
and family), the plaintiff denounced a violation of rights of respecting her family life and reproached to
the State for the fact that weren’t taken adequate measures on restoring the relationship with her child.
Citing the art 13 (the right to an effective appeal) combined with the art. 8, she reclaimed the lack of an
effective internal appeal which could solve the situation.
The court established, unanimously, the violation of art.8 of the Convention, considering that is not
necessary to examine separately the plaintiff complaint cited under the art 13 of the Convention. Thus,
the Court decided that the relevant authorities have to take all necessary measures, reasonably
applicable in order to restore the contact between the plaintiff and her son as long as the court is
deciding with which parent the child will live.
The establishment of child’s residence has a double significance: from one side, the child’s right to
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18 December 2019
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Cite this article as:
Focşa, T. (2019). The Procedural Practices of Establishing the Child’s Residence in the Republic of Moldova. In A. Sandu, T. Ciulei, & A. Frunza (Eds.), Logos Universality Mentality Education Novelty, vol 15. European Proceedings of Social and Behavioural Sciences (pp. 355-362). Future Academy. https://doi.org/10.15405/epsbs.2016.09.46