Can a parent have access without exercising parental authority?

Verified 27 June 2023 - Directorate for Legal and Administrative Information (Prime Minister)

Yes, the Family Court Judge (Jaf) may grant access to the parent who is not exercising the right of accessparental authority, if it is in the best interests of the child.

This right of access may be denied or withdrawn only on serious grounds (e.g. endangering the life of the child, violence).

In most cases, a parent does not exercise parental authority when the parents are separated and the judge has entrusted them the exclusive exercise of parental authority to one of them.

The late recognition of a child also has consequences for the exercise of parental authority. Parents who recognize their child after the age of 1 year do not exercise parental authority.

Parents also do not exercise parental authority in cases of delegation of parental authority to a third party.

In all these situations, the parent who does not exercise parental authority retains the other rights attached to parental authority. It has the right and duty to supervise the maintenance and upbringing of the child and it may ask the Jaf to grant him or her a right of access and accommodation.

Please note

the non-exercise of parental authority is different from the total withdrawal of parental authority. One withdrawal of parental authority leads to the loss of all parental rights and therefore to the loss of visiting rights.

The Jaf shall take its decision taking into account thebest interests of the child. It grants access in accordance with the child's need for effective and continuous contact with his or her parents.

The Jaf may refuse access for the welfare and safety of the child. Refusal does not occur only for serious reasons (disinterest in the child, violence, endangering the child...)

The Jaf shall lay down detailed rules for the exercise of rights of access, taking into account thebest interests of the child.

It may decide that the right of access shall be exercised in a neutral place outside the parents' home (for example, in a park).

The Jaf may also decide that the visits shall take place in a meeting place designated for that purpose. This is called media access. This is the case, for example, when a parent is placed in a medical facility or has no permanent residence or is in prison.

FYI  

the parent exercising sole parental authority must respect the right of access of the other parent. Otherwise, it may incur criminal penalties for non-representation of a child.

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