Bill no. 1106 on the promotion and supervision of alternating residence for children of separated parents

On 11 April 2025, the Government tabled Bill no. 1106 on the promotion and supervision of alternating residence of children of separated parents (2025-2, 25 March 2025), which is the result of the transformation of (parliamentary) Draft Law no. 261, which had been adopted on 27 June 2024 by the Parliament (Conseil national).

Like Draft Law no. 261, Bill no. 1106 amends articles 303-2 and 303-3 of the Civil Code, while making a number of changes to the scheme proposed by the Conseil National.

To be noted: The Parliamentary Committee to which Bill no. 1106 will be referred may in turn amend the Government's Bill.

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SUMMARY

Alternating residence was introduced into the Civil Code by Law no. 1.450 of 4 July 2017, 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.

Under current Monegasque law, the guardianship judge ("juge tutélaire") can only order alternating residence if there is mutual agreement between the father and mother.

The aim of the reform is to enable the guardianship judge, where justified by the child's best interests, to fix the child's habitual residence alternately at the home of each of the father and mother, even in the absence of their agreement.

Bill no. 1106 makes the following changes to draft law no. 261:

• Alternating residence, at the request of one of the parents or in the event of disagreement between the parents, could be ordered by the guardianship judge on a provisional basis for a period to be determined by the judge. At the end of this provisional period, the judge would make a final decision. In this way, the Government "favours an alternative solution consisting of not imposing the child's alternating residence at the home of the separated parents on a permanent basis without first making provision for its temporary implementation" (Explanatory memorandum, p. 3).
• It is expressly stipulated that the judge will rule on the terms and conditions of payment of family benefits ("prestations familiales") when he or she orders the child to live alternately at the home of each of his or her father and mother in the absence of agreement between them. "This provision is intended to avoid any risk of dispute over the arrangements for payment of family benefits in the event of a conflict, so as to enable alternating residence to be implemented effectively" (Explanatory memorandum, p. 5).

The Explanatory Memorandum reiterates that the opinion of the child concerned is taken into account during the proceedings before the guardianship judge, "a fortiori when he or she makes a request on the basis of the second paragraph of article 303-6 of the Civil Code". In this regard, it refers to the case law of the European Court of Human Rights (judgment of 9 April 2019, Case V. v Slovenia, 878/13), which "specifies that, despite the child's wishes, States have a positive obligation to propose alternative solutions that promote the maintenance or resumption of ties between a parent and his or her minor child" (Explanatory Memorandum, p. 4).

The best interests of the child are taken into account by the guardianship judge "so that the child can maintain regular and healthy relations with both parents where this is possible and is in the child's best interests, while enshrining, if possible, equality in the exercise of their parental rights" (Explanatory Memorandum, p. 5).

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Outline of Bill no. 1106 (before consideration by the Parliamentary Committee)

¤ Addition of a 3rd paragraph to article 303-2 of the Civil Code:

"In application of the two preceding articles, the child's habitual residence may be fixed at the domicile of his father or mother or, subject to compliance with the provisions of the following article, alternately at the domicile of each of them.

In the interests of the child, the judge may, however, fix the child's residence with another person or institution which performs all the usual acts relating to the child's supervision and education.

Proposed addition → Subject to compliance with the provisions of article 303-3 and in the best interests of the child, at the request of one of the parents or in the event of disagreement between them as to how the child's residence is to be determined, the guardianship judge may provisionally order alternating residence at the home of each of the child's father and mother, for such period as he or she shall determine. At the end of this period, the judge will give a final ruling on the child's alternating residence at the home of each of the father and mother or at the home of one of them."

¤ Amendment of the 3rd paragraph of article 303-3 of the Civil Code:

"No alternating residence may be agreed by the father and mother, homologated by the tutelary judge or fixed by the latter when the child is under three years of age.

Before agreeing to alternate residence, the parents may request the appointment of a child psychiatrist from a list of child psychiatrists drawn up by the public prosecutor.

The guardianship judge may not, under article 303, fix the alternating habitual residence of the child without their joint agreement. Repeal and Proposed modification → For any decision ruling on the alternating residence of the child in the absence of agreement by the latter, the guardianship judge shall rule on the arrangements for the payment of family benefits."

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