Question 41373 — family

Summary

Mr. Alain Perea draws the attention of the Keeper of the Seals, Minister of Justice, to the interest for the child, in the event of marital separation, of favoring parental presence time that is as balanced as possible. Indeed, the law of March 4, 2002 relating to parental authority brought alternate residence into the civil code. The preparatory work shows that the legislator's desire was to give priority to this method of residence. Thus, the report of the Law Commission of the National Assembly expresses the wish "that in the event of disagreement of the parents on the residence of the child, priority be given to the alternate custody formula" (report no. 3117 by Mr. Marc Dolez, submitted on June 7, 2001). However, almost 20 years after the passing of this law, only 12% of children of separated parents are in alternate residence according to INSEE, while this This figure reaches, for example, 40% among the Belgian neighbors. This situation cannot be explained solely by pointing out the general disinterest of fathers, since in the event of opposition from the mother, the request for alternate residence made by the father is only granted in 25% of cases. It therefore appears that the will of the French legislator in 2002 was not respected. A recent study published by Dalloz, carried out after a survey of judges (AJ Family, July 2021), confirms that while some family court judges are rather favorable to the principle of alternating residence, others are opposed to it, which fuels the legitimate fear of legal uncertainty among litigants. However, in a judgment rendered on July 1, 2021, the Paris Court of Appeal, overturning the order of first instance, has just ruled that “the establishment of a work-study residence can be completely beneficial for the child by allowing him to develop real relationships with each of his parents and to continue to build himself in the most balanced way possible, by nourishing himself with the specific contributions transmitted by his father and his mother” (CA of Paris, Pôle 3 - Chambre 3, July 1, 2021, n° 20/12170). A modification of French law would make it possible to unify case law and thus reduce the current hazard judicial, contrary to the principle of equality before the law. Everyone has the right to be judged in the same way, regardless of their place of residence. It would not be a question of imposing a single solution on the judge but of ensuring that, in accordance with the aforementioned case law of the Paris Court of Appeal, all JAFs in France examine as a priority, at the request of a parent, balanced parenting time, naturally outside of cases proven acts of violence by one parent against the other parent or against the child. This priority could result in the creation, as in Belgium, of a regime of legal presumption, in the same way that it is presumed to be in the child's interest to maintain personal relations with his grandparents (article 371-4 of the Civil Code). He is therefore asked what he intends to implement for shared parental time in the event of separation of the parents and for the promotion of alternate residence when possible.

Machine translation from French. The official text remains authoritative.

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