“CO-PARENTING” OR COMMON CUSTODY AND CARE

EXPLANATION AND NEED FOR CHANGE

By Andreas Papamichael 24.08.2022

In recent years, Cyprus has seen a rapid increase in divorces, most of which are what we usually call consensual divorces. Despite the consensual nature of most divorces, experts (psychologists) report that parental separation is a high risk factor for children's mental health. Often the relationships of separated parents are characterized as conflictual and while there is no scientific source that states that either the Father or the Mother has priority in ensuring the mental health of the child, there is the position that "maintaining and strengthening the relationship with both parents is considered a key criterion for a balanced development and an inalienable right of the child."

Most of the issues that affect the child in the Cypriot reality are judged in the Judicial process called “Parental Care”. Parental care is a broader concept that includes the representation, property management and custody of the minor child. Custody as a more specialized manifestation of parental care includes indicatively, the upbringing, supervision and education of the child. In other words, it is a right as well as an obligation that gives great authority, as well as the responsibility to the parents and that is why it is exercised jointly. Another more specific manifestation of parental care used by the Cypriot Courts is “residential custody”, which in essence assigns to the child a habitual place of residence that until now was assigned to one of the two parents, and then the right of communication is regulated by a Court Order for the other parent.

The above practice has been applied for years in accordance with Cypriot legislation and the issued decrees. But is it ideal or does it now need modernization and renewal?

The issuance of an order that provides for the custody and care of one parent and regulates the communication of the other parent, seems to create several intractable problems. First of all, it gives the custodial parent the feeling that she/he has achieved a victory and won a "trophy", resulting in her/him behaving inappropriately and disrespectfully towards the other parent, trying to use the decree as a pretext to convince schools and other organizations, that she/he has the ability to decide exclusively for the child, etc. The parent to whom the Court assigns residential custody is usually recognized the right to receive maintenance/ alimony, since she/he mostly bears the costs of the minor's needs. In the worst cases, she/he acts vindictively to cut off and alienate the child from the other parent.

What makes the recent decision of the Pafos Family Court innovative and progressive is the fact that, while the Court had before it a highly conflictual relationship between the two parents with a history of 2 already estranged children, and while the mother took it for granted that the residential custody will be awarded to her, the Court decided that the child's best interest is residential custody to be awarded to both parents for the time each of them will have the custody of the minor. The Court then issued an order providing for a communication schedule that is assigned to both parents in rotation.

With the above approach of the Court, the pathologies of the practice until now are eliminated, since there is no longer a parent who is empowered at the expense of the other through the Court decision. There is no parent who almost exclusively bears the child's living costs, there can be no continuous influence on the child for long periods of time, there is no indifferent and irresponsible parent, and the child can enjoy and benefit from equal time with both parents and many more.

It is inevitable that sooner or later this approach will also present pathologies, either due to the human factor or due to systemic gaps. Although, each problem is dealt with if and when it arises. To remain stagnant in a proven problematic practice because of fear of an unknown problem, that is likely to arise, is a sign of conservatism that can only bring harm.