In the Republic of Serbia in 2023, there were 10,175 divorces, representing an increase of 3.7% compared to the previous year. The largest number of divorces involved couples with children—5,270 (51.8%). Among the total number of divorces with children, the most common were those involving one child—2,618 (49.7%). After divorce, the children were most often awarded to the mother, in 3,613 cases (68.6%).
(Source:https://www.stat.gov.rs/sr-latn/vesti/statisticalrelease/?p=15207&a=18&s=1804?s=1804).
The data above, while not exhaustive (as it does not include non-marital unions with children), roughly indicates that last year, at least 5,270 children faced the challenge of maintaining personal relationships with the parent they do not live with, as well as with that parent’s relatives. (Article 61 of the Family Law). The child’s right to maintain personal relationships with the parent they do not live with is part of the broader right to respect for family life, and the model for maintaining personal relationships with the non-custodial parent must be included in both the divorce agreement and the court’s decision on divorce.
In addition to the right to maintain relationships with their parents, children have the right to maintain personal relationships with relatives and other individuals with whom they share a special bond (Article 61, Paragraph 5 of the Family Law), unless this right is restricted by a court decision. The right to maintain relationships with relatives and close individuals presents challenges in cases where the relationships between parents are strained, as well as in situations where there are disharmonious relationships between parents and relatives. If this right is difficult to implement due to various life circumstances (most often disrupted partner relationships that significantly affect the parental roles of former partners and their relationships with their relatives), a concerned parent or relative/close person may file a lawsuit to protect the child’s rights, requesting a court decision that regulates the manner of maintaining the parent-child relationship.
Although the law explicitly states that a lawsuit to protect the child’s rights can be filed by the child, the child’s parents, the public prosecutor, and the guardianship authority, there is an increasing number of lawsuits filed by the child’s closest relatives aimed at arranging the way personal relationships between them and their minor relative are maintained.
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“It is unfounded that the defendants challenge the active legitimacy of the plaintiff to file this lawsuit, citing the provision of Article 263, Paragraph 1 of the Family Law. It is true that the cited provision of Article 263, Paragraph 1 of the Family Law states that a lawsuit for the protection of a child’s rights can be filed by the child, the child’s parents, the public prosecutor, and the guardianship authority. However, the right to file this lawsuit is derived by the plaintiffs from Article 61, Paragraph 5 of the Family Law, according to which a child has the right to maintain personal relationships with relatives and other individuals with whom they share a special bond, unless this right is limited by a court decision. Given that the relationships between the plaintiffs as close relatives of the child and the children’s mother are strained, it is evident that such a lawsuit could not be filed on behalf of the children by their mother, or by the children through their mother as their legal representative. In that case, and based on the fact that this is a legally recognized right of the child, the lawsuit for the protection of this child’s right can be filed by the relatives referred to in the cited legal provision.” Judgment of the Supreme Court of Cassation Rev. 15499/2022 dated October 27, 2022. |
In the present lawsuit, in addition to the obligation to act in the best interests of the child, the court must determine the existence of an additional qualifying circumstance:
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“Unlike the maintenance of personal relationships between a parent who does not live with a minor child, where blood relations are present, other factors are also significant, such as the psychological and emotional attachment of these individuals, or the actual existence of close personal ties. Therefore, for assessing the validity of the lawsuit, it is crucial to determine whether there are indeed close personal ties between the plaintiffs and the minor child, or whether maintaining personal relationships with relatives would be in the best interests of the minor child, which the court is always obliged to prioritize according to Article 266, Paragraph 1 of the Family Law and Article 3 of the Convention on the Rights of the Child.” (Decision of the Niš Appellate Court, Gž2 161/2019 dated April 17, 2019)
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Furthermore, due attention must be given to the child’s opinion in all matters concerning them and in all proceedings where their rights are determined, in accordance with the age and maturity of the child. A child who is 10 years old can freely and directly express their opinion in any court or administrative procedure concerning their rights, and a child aged 15 years decides independently about maintaining personal relationships with their parents, relatives, and close individuals. However, until they reach 15 years of age, a child can freely express their opinion, but the court is not bound by that opinion and must always determine the best interest of the child. To determine the best interest of the child, the role of the Center for Social Work, as the guardianship authority, is significant. The Center for Social Work is obliged, in these and all disputes that protect the child’s rights, to provide the court with a report and expert opinion on whether it is in the best interests of the minor child to maintain personal relationships with grandparents and other individuals with whom they have a special bond, and in what manner and under what conditions.
The law does not prescribe how personal relationships between the child and the parent who does not exercise parental rights, or with relatives and close individuals, will be maintained; thus, the court decides on this, consulting the findings of the guardianship authority in each individual case, always considering the best interests of the child. It should be noted that the best interest of the child is also a variable category, and the child’s life circumstances or the effects that the visitation model has in practice can condition a change to the initially established model.
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“According to the established factual state, the previous judgment P2 No. 82/20 dated September 17, 2020, regulated the manner of maintaining personal relationships between the minor SS, born in… 2017, the joint child of the plaintiffs on one side, and the defendant VV, the paternal grandfather of the minor child, on the other side, so that minor SS spends every fourth Wednesday of the month from 6:00 PM to 7:30 PM and every second Saturday of the month starting from 10:00 AM to 11:30 AM at the apartment where the child lives with their parents in…, in the presence of both parents and observing protective measures against “COVID-19.” It is undisputed that the defendant has not exercised their right to see the child as stipulated by the judgment since the date of its issuance. The litigating parties do not have a good relationship; the defendant evicted the plaintiffs, their son and daughter-in-law, together with minor SS from their home in 2018. The parents did not oppose the grandfather maintaining personal relationships with the child, but due to the strained relationship with the defendant, the child’s age, and the fact that the child and the grandfather do not know each other, it was necessary for the visits to occur in the presence of the parents, in an environment familiar to the child, and to set specific times and durations for the visits. The interest of the child in establishing a close relationship with the grandfather is undisputed; the parents do not oppose the grandfather visiting the child or meeting with the child outside their apartment, and they have respected the obligations set by the previous judgment as they were present with the child at home during the established times and awaited the defendant’s visit… The defendant has not exercised their right to see the child according to the model established by the previous judgment for two years, and this model created a significant obligation for the plaintiffs to be at home during the visitation times and await the defendant, as well as for the child itself. Considering that the defendant and the child did not establish a close relationship and that the defendant contributed to this, and that the parents are merely asking for a change in the visitation model because the adopted model, through no fault of theirs, is not functioning and imposes an obligation that does not fulfill the purpose of the previous judgment, the first-instance court concluded that it would be fairest and most appropriate for the visitation times to be determined by agreement between the plaintiffs and the defendant. Maintaining the previous ineffective model that imposed an obligation on the child and the parents to prepare for visits that never occurred was not in the child’s interest, which prevails over the grandfather’s interest.” Judgment of the Belgrade Appellate Court, Gž2 367/2022 dated September 16, 2022.
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It is essential for the court, when making a decision about the model for maintaining personal relationships with the child, to be clear and precise—specifying exactly which days, at what location, within what time frame, where the child is picked up and returned to the parent, and so on—because common formulations (two weekends a month, half of all school holidays, national and religious holidays, children’s, parent’s or relative’s birthdays, etc.) allow for different interpretations and potentially for abuse, to the detriment of the child. This way, all possibilities for potential abuse aimed at hindering the realization of this child’s right will be excluded, and ultimately, a court decision that is precisely defined will also be enforceable.
Disclaimer: This text is written for informational purposes only as well as to give general information and understanding of the law, not to provide specific legal advice. For any additional information feel free to contact us.
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