Alternating residence for children: towards a new power for the guardianship judge (draft law no. 261 passed)

The parliamentary draft law no. 261 on the promotion and supervision of alternating residence for children of separated parents (two articles), received on 12 June 2024, aims "to reform the legislation on alternating residence, by giving judges the power to impose this measure when the best interests of the child so require". (Explanatory memorandum, p. 1). It was adopted at the Public Meeting of 27 June 2024.

NB: a draft law adopted by the Parliament (Conseil National) is then forwarded to the Government, which has the option of either transforming it into a bill or suspending the legislative procedure.

Presentation

Law no. 1.450 of 4 July 2017 on alternating residence introduced into the Civil Code the possibility of alternating residence for children of divorced or separated couples (and also specified the procedures for exercising parental authority, as well as amending the provisions relating to family mediation).

The introduction of alternating residence into Monegasque family law was in line with the Principality's international commitments, in particular article 3 of the New York Convention of 20 November 1989 on the Rights of the Child (in force in Monaco since 21 July 2013), which enshrines the best interests of the child,

The aim of Law no. 1.450 was to take account of changes in society, without making alternating residence of the child in the home of each parent the reference model.

As its title suggests, draft law no. 261 promotes alternating residence. It is motivated by the need to maintain for the child "a regular and healthy relationship with both parents", "equality in the exercise of their parental rights", and the prevention of "the harmful effects of parental conflict on the child" when "the alternating residence decided by the judge, accompanied, where appropriate, by investigation and assessment measures, may be perceived as a fair solution". (Explanatory memorandum, p. 2)

Guaranteeing children's rights ("protecting children and promoting their fundamental rights, which are essential for their healthy development"), without denying parents' rights, is the guiding principle of this measure. (Explanatory memorandum, p. 3).

The Committee to which the draft law was referred noted that "current Monegasque legislation refers only to the notion of the 'best interests of the child'", and that "the introduction of this wording into Monegasque legislation is highly symbolic for all the members of the Family Rights and Equality Committee, who invite the Government to initiate harmonisation of all texts so that only the notion of the 'best interests of the child' is used". (Report on draft law no. 261, p. 3)

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Contents of draft law no. 261

¤ Amendment of the first paragraph of Article 303-2 of the Civil Code

Proposed new wording:

"In application of the two preceding articles and subject to compliance with the provisions set out in the following article, the guardianship judge may fix the child's habitual residence in the child's best interests, either alternately at the home of each of his father and mother, even in the absence of their agreement, or at the home of one of the parents."

¤ Subsequent repeal of paragraph 3 of article 303-3 of the Civil Code

As a result, the obligation set out in this paragraph for the guardianship judge to obtain the joint agreement of the parents when ordering alternating residence would be abolished.

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