Court of Appeal of Thessaloniki Decision No. 690/2024: Reversal of the joint custody awarded at the first instance for a minor child, assigning exclusive custody to the mother in the second instance. Exceptional cases may allow custody to be solely entrusted to one parent, deviating from Article 1513 of the Greek Civil Code, as amended by Law 4800/2021 (Government Gazette A’ 81/21.05.2021), with application of Article 1514. Scope of parental care and custody.
In 2024, our office successfully achieved the issuance of Decision No. 690/2024 of the Court of Appeal of Thessaloniki, which formally and substantially accepted the appeal of our client against Decision No. 12313/2023 of the Thessaloniki Single-Member Court of First Instance, and awarded the custody of the appellant mother’s female minor child exclusively to her.
Below are excerpts detailing the legal reasoning of the Court (emphasis added by the author):
“(…) With Law 4800/2021 (Government Gazette A’ 81/21.05.2021) regarding ‘Reforms concerning parent-child relationships, other family law issues, and other urgent provisions,’ particularly in Chapters B and C, a series of provisions of the Civil Code regarding parent-child relationships, especially the issues of parental care of minors (Articles 1510–1541 of the Civil Code), are replaced or modified (…). Specifically, according to Articles 1510, 1511, 1512, 1513, 1514, 1526, 1518, and 1519 of the Civil Code, as amended by Articles 7, 5, 6, 8, and 10 of Law 4800/2021, the care of a minor is a duty and right of both parents, exercised jointly and equally, and includes the care of the person, the management of the minor’s property, and the representation of the minor in any case, legal act, or trial concerning the minor’s person or property, which are considered personal rights (non-transferable). However, a parent may be deprived of exercising these rights, either fully or partially, by court order. Custody, under Article 1518(1) of the Civil Code, encompasses raising, supervising, educating, and training the child and determining the place of residence. In cases of marital separation,where family life is disrupted and each parent establishes a separate residence, the issue arises of whether the minor should reside with the father or the mother. Parents continue to jointly exercise parental care, provided both are carriers of it (Article 1513, first sentence, Civil Code), except for usual acts of custody over the child’s person or routine management of the property, or acts of urgency (Articles 1513, second sentence, and 1516, first sentence, Civil Code) performed by the parent with whom the child resides, subject to informal notification of the other parent. Consequently, the new Article 1513 deviates from previous law by establishing that parental care, following parental separation, continues to be exercised jointly by both parents, just as it is during marriage or civil partnership. Thus, joint parental care after separation becomes a legal system similar to the one that exists during marriage, so that parents are no longer required to go to court to regulate joint parental care. This system is mandatory in the sense that it applies automatically by law, even if one parent disagrees (…) In cases of systematic refusal to cooperate, the court cannot decide based on Article 1512 of the Civil Code but must apply Article 1514, which provides an exception to joint parental care when it is infeasible due to parental disagreement, especially if one parent shows indifference, fails to participate in joint custody, or breaches any existing agreement regarding the exercise or method of parental care, or if such agreement contradicts the child’s best interests or if parental care is exercised contrary to the child’s interests. In such cases, either parent may resort to mediation, except in cases of domestic violence. If they disagree, the court may decide (paragraph 2) to: a) allocate parental care between the parents, specify the method for specific issues, or entrust one parent or a third party with parental care; b) order an expert opinion or take any other suitable measure; c) order mediation or the resumption of interrupted mediation, simultaneously appointing a mediator (paragraph 3). Therefore, the Court will decide any measure deemed appropriate for the child’s best interest, functional allocation of parental care, exclusive assignment to one parent, or time-sharing custody, possibly alternating residences, if this serves the child’s best interest (…) The guiding principle for determining parental care in cases of parental disagreement and court involvement is the child’s best interest, aimed at developing the child into an independent and responsible individual (…) The term ‘child’s interest’ encompasses physical, material, intellectual, emotional, moral, and, more broadly, any interest that seeks to foster an independent and responsible personality in the minor (…) Relevant factors include, among others, each parent’s suitability for rearing and caring for the child, the child’s established bonds formed by free choice with either parent or sibling, if applicable (…) Additionally, parental capabilities, their environment, profession, intellectual development, social engagement, adaptability to modern societal demands within the framework of logical and rational handling of young people’s issues, and the stability of the child’s developmental environment without frequent changes in living conditions are among the criteria for determining the child’s interest (…).”
Below are excerpts regarding the factual findings of the Court:
“(…) Further, concerning the female minor child of the parties, which is the subject of this case, it is shown that from birth, the respondent has displayed complete indifference toward this child and has never maintained any contact, unlike the male minor child (…) He never requested to see or communicate with the female child, nor sought custody or visitation arrangements as he did with the male child. His indifference stems from his suspicion that the child is not his biological offspring but the result of an extramarital affair he alleged his wife had during the primary court case. He even requested a DNA test multiple times to establish the child’s paternity (…)
Although he appeared to abandon this claim at the trial, expressing a desire to partake in the upbringing of the female child,
citing recent changes in family law under Law 4800/2021, this interest is deemed insincere and is unsupported by evidence. In fact, he has shown no concern for the female child, not even when she was hospitalized in April 2023, along with the male child. (…) Given this continued indifference and considering the severe relations between the parties (…), the child’s best interest mandates an exception to the joint custody provision of Article 1513, awarding sole custody to the appellant mother, who has cared for and addressed all the child’s needs since birth, and is deemed fit to raise and educate the child effectively (…)”
Based on this reasoning, the decision overturned the first instance judgment, which incorrectly assessed the evidence and awarded joint custody, disregarding significant claims regarding circumstances existing at the first instance. The court of appeal corrected this misinterpretation, evaluating the evidence initially presented along with new admissible evidence from the first hearing at the appellate level (Article 529 of the Code of Civil Procedure), concluding that the child’s best interest would be served by entrusting custody solely to the mother, given the father’s indifference.
This outcome required an exceptional deviation from Article 1513 in favor of applying Article 1514 of the Civil Code due to the specific factual circumstances outlined.
