A favor de la dejudiciarización del divorcio y a favor
de leyes que tengan en cuenta la evolución de la familia, los verdaderos intereses del
niño y la igualdad de derechos de cada uno de los progenitores. Leyes que conduzcan a
rebajar las tensiones de la separación, que retiren a los abogados el divorcio ante la
demanda conyugal y que impongan límites a la arbitrariedad de los magistrados en los
procedimientos en los que el oscurantismo social y el sexismo pueden influir gravemente en
las decisiones.
"El amor niño-padres es más fuerte y permanente que el amor hombre-mujer, estos
últimos se divorcian a menudo porque el amor se consume. El niño, por el contrario, no
se divorcia de sus padres.
Sus dos amores quedarían intactos si no se hiciera daño al niño, si no se le obligara a
elecciones imposibles. La familia que se formó con su nacimiento sigue existiendo.
Los amores de hombres y mujeres pueden apagarse y en ocasiones de forma cruel, pero las
consecuencias no suelen ser catastróficas. Mucho más cruel, estúpida y devastadora es
la destrucción de la relación afectiva del niño con "el otro" de sus
progenitores, el miembro excluido, cuando se rompen los lazos familiares. Las culpables de
este fenómeno son las leyes y las prácticas sociales y judiciales aberrantes, que tienen
una concepción de la familia económica y sexista, y que violan los Derechos del Niño,
olvidando por completo sus necesidades afectivas y psicológicas vitales, y comprometiendo
gravemente su equilibrio y su futuro social.
Cualquier violación del amor que el niño experimenta con respecto a uno de sus
progenitores tendrá consecuencias para el futuro de toda la sociedad de la que dichos
niños formarán parte en la siguiente generación " |
 |
The judicial structures and practices have amply
shown their inability to handle parental separation in the true interests of the children.
and according to the fundamental rights of fathers and mothers. The
" reconciliation attempts " procedures as prescribed by law has
completely disappeared in practice. Conflicts becoming more acute instead of this
opportunity being seized to explore all possibility of agreement for the
children’s’ welfare.
- The practice of closed " in camera " hearings;
the judges overloaded with cases, whose power is practically absolute with decisions
impossible to monitor; the imprecision of the laws; these are all factors which militate
against a guarantee of equity in the family justice rendered " in the name of
the People of France ".
- Associate with each Judge of Family Affairs (JAF) lay-people, possibly to be elected,
parents who will guarantee certain defined family principles, who will take on the
interviews, the audition of children, the conciliatory meetings, the follow-up of
situations of conflict and of everything concerning child well-being and parental rights.
They will assist the GAF during hearings and represent family feeling and democratic
monitoring.
- Publish monthly statistics for each judge regarding assignment of residence of the
children, exercise of parental authority and the rights accorded.
- Make judges civilly responsible for their decisions (cf. Declaration of the President of
the Republic, as the counterpart of judges independent status.
- Obligatory reconciliation meetings between parents where there are conflicts concerning
children and the creation of centres for information and preparation for divorce.
- Encouragement, as opposed to " judicial warfare ", of
" divorce by agreement " (joint applications, real and successful
conciliation...) at lower cost and without obligatory recourse to a lawyer as at present.
The legal advisers (attorneys, notaries) will remain necessary for material aspects and
the dividing-up of property if any.
At present, in the name of " the interest of the child ",
diametrically opposite judgements can be rendered in identical cases. The only available
definition is in reality the text of the International Convention on Children’s’
Rights considered in its totality. The notion of " exercise of parental
authority " remains undefined and no penal measure is available against
deliberate and repeated breach of this principle. This means that the parent with whom, by
judge’s assignment, the child principally residences habitually takes all decisions
with absolutely no consultation of the other parent, rendering very illusory in practice
this " parental authority " which in itself is an archaic term.
- Legislate for a sufficiently clear and precise definition
of what is involved in the notion of the interest of the child, in particular in the case
of parental separation seperation which is where a precise interpretation is most often
needed.
- Replace the expression " parental authority " with
" parental responsibility " in the texts.
- Define the concepts and the practical rights involved in the possession of
" parental authority ".
- Define penal or other measures against the breach of the principle of parental authority
by one parent, to the detriment of the rights of the other parent.
- Restitution of the right to exercise parental authority to the 500 000 parents
(including 30 000 mothers) who are still deprived of it because divorced before the law of
January 8 th, 1993.
The child, who should remain a symbol of life and of love, is increasingly
instrumentalised in our society of divorce and controlled maternity. He or she is too
often an economic shield or source of income and even the object of a need for possession
or to assert oneself, without consideration of the child’s rights as a person.
- Penal prosecution of the parent who cuts off the child from the
other parent, before any legal decision, so as to create a de facto situation leading to
interruption of the child-parent relationship which can last for months.
- Systematic proposal by the courts of the transfer of the child’s principal
residence to the other parent if cases of non-presentation of the child occur on the part
of the parent first having that entitlement.
- Real judicial prosecution for non-presentation of children and with the same severity as
for the non-payment of maintenance which, on the basis of a given number of cases, leads
to 15 times more convictions.
- Systematic reassessment of the assignment of principal residence when the
" guardian " parent has moved or arranged placement of the child
without necessity at a distance which is an obstacle to visits by the access of the
" non-guardian " parent.
- Travelling costs for exchange of children (holidays, week-ends) to be paid by the parent
who has voluntarily removed the child from the initial place of residence.
While a third of births are now outside marriage several categories of children with
differing entitlements according to their condition of birth were introduced by the
Senate, under the influence of the attorney and senator Dreyfuss-Schmidt, at the time of
adoption of the law of January 8 th, 1993 (criteria concerning cohabitation with the
mother for the un-married father, requirement to apply to the courts for a simple
certificate of cohabitation which does not really confer " parental
authority "). When separations occur in conflict un-married fathers find
themselves with no established rights and immediately lose contact with the child.
- Automatic and legally recognised exercise of " parental
authority " for every, married or not, having legally recognised a child. Any
withdrawal of this authority to be based on specified reasons and to require a court
decision.(done in law : march
2002)
- In the case of children of " unknown fathers " forceful incitement
of the mothers, even an obligation, to designate the presumptive father or fathers and
launch of genetic procedures by the authorities.
- Recognition of the right of a child to be informed of his or her origins. Abolition of
the existing entitlement of mothers to have their names unrecorded when giving birth since
the procedures for abandonment of rights and obligations and for adoption are sufficient
to meet every particular situation. Option for the father agree to raise the child.
" Good " parents but who are non " guardian "
suffer from objectively discriminatory treatment on state health insurance, state
children’s allowances and tax payment: although they lodge, feed and take care of
their children, often more than 100 days a year, they receive the same treatment as
childless bachelors of the same revenue " bad " parents who never
exercise their rights to feed and lodge their children.
- Extension of a " non-guardian " parents state
health insurance cover to the child so that the parent can be sure of refund when the
child is treated at weekends or during holidays in his or her care.
- Attribution of a part of the state children’s allowances to parents who lodge and
feed a child more than 60 days a year.
- Attribution of a share in family tax reduction entitlement to parents who lodge and feed
a child more than 60 days a year.
When some children are assigned to one and others to the second parent large family status
and increased allowances no longer apply. The Children’s Allowances Administration
avails of this opportunity to reduce the overall sum to be paid.
- Overall payment level to be maintained when some children are
assigned to one and others to the second parent.
The conditions for psychological and emotional balance of children are not taken
adequately into consideration. Viewpoints are often outdated. In this way an old decision
of the Supreme Court of Appeal (" Court de Cassation ") blocks the
possibility of alternate " guardianship " which in certain
circumstances are excellent solutions.
- Introduce into law the possibility of programmed periods of
residence with variable alternance frequency according to the children’s age (short
periods for very young children).(done in law : march
2002)
The levels of maintenance payments are determined in a purely arbitrary fashion and left
to the sole appreciation of the judge.
- Furthermore sudden loss of revenues (loss of employment...)
leave the parent who pays confronted with impossible financial obligations during the
months required for the revision procedure.
- Backdating of reductions in maintenance for sudden loss in revenue and a significant
speed-up of the procedures for these situations.
- Drafting of official guidelines for determining maintenance payment levels using
variable data and promoting a more objective appreciation of every sort of situation.
The " meeting-points " which could have served as instruments to
promote mediation and communication between hostile parents when exchanging children have
quickly changed to tools of psychological power and anti-father repression.
- Prohibition of the placement under psychological surveillance in a
" meeting point ", and against his or her will, of a parent who has
been the object of no conviction or indictment.
- Closure of " meeting points " which cannot lodge parents who have
to travel to come there, which do not allow outings or which limit visits to 2 or 3 hours.
They should be replaced by provision of a service which accompanies children from their
homes and back again.
Communication between Family affairs Judges and the Public Prosecution Office and
systematic indictment of anyone who has given false testimony or made false accusations
with a view to limiting a parent’s visiting rights. The habits of most courts are
out-dated where the definition of visiting rights is concerned: every second week-end and
half of the holidays.
- Introduce systematically in the judicial decisions the conditions
of telephone contact between the children and the parent who is excluded from their daily
lives.
- Introduce systematically in the judicial decisions the visiting and lodging rights on
Wednesdays, public holidays and holiday " long week-ends "
(translator’s note: French children have no school or shorter hours on Wednesdays).
|
