In persons and family law, ‘parental authority’ is a central concept. ‘Parental authority’ is also regularly mentioned in everyday life. But what does parental authority mean concretely, and what does it cover?
As a concept, parental authority can best be described as a set of powers a parent has over his child. It is important to know that parental authority consists only of authority, parental obligations are not formally part of parental authority.
In summary, parental authority contains the following components
- The right to personal contact (art. 374, § 1, 4th paragraph old Civil Code);
- The authority over the person of the minor (art. 373-375 old Civil Code);
- The management of the minor's property and the power of representation (art. 376-379 old Civil Code);
- The right of supervision of upbringing and management (Art. 374, § 1, 4th paragraph and Art. 376, 4th paragraph old Civil Code);
- The parental usufruct of the minor's property (art. 384-387 old Civil Code).
There is a distinction between being the holder of all these elements of parental authority and being allowed to effectively exercise certain parts of it (custody and management).
Generally, being a holder and exercising them coincide completely: each parent, by virtue of being a ‘parent’, is in principle the holder of his parental powers and can exercise them fully. In practice, however, it regularly happens that, as far as the exercise of custody and management of property is concerned, only one parent will exercise these powers (the so-called ‘exclusive exercise of custody’), and that the other parent then has a supervisory right.
Nevertheless, joint custody is the rule and exclusive custody is the exception!
Below, we elaborate a little on the different components of parental authority.
1. The right to personal contact
The right to personal contact means that every parent always has the right to have regular personal contact with their child. The right to personal contact is concretely realised as a function of the exercise of the so-called ‘right of custody’. The right of (material) custody is part of the authority over the minor's person (see below, under item 2.) and is a synonym for the custodial right. However, the term ‘’custodial right‘’ is no longer used in law. The right of (material) custody means the right to have the child with you in a continuous manner, and to claim delivery of it from others.
In the majority of cases, both parents exercise the right of custody. This is the case when both parents live together. The same applies to parents no longer living together but exercising joint custody.
Only in cases of exclusive custody, i.e. when one parent exercises sole custody (and thus material custody), then the right to personal contact of the parent who does not have the right of material custody is realised under the form of a visiting right. This is also the case for parents whose child has been entrusted to a third party. When sole custody is exercised, there is actually no residence arrangement: the child then resides exclusively with the parent who has material custody of the child.
2. The authority over the person of the minor
This part of parental authority should be divided into the right of custody on the one hand and the right to decide on fundamental options on the other.
The right of custody
The right of custody includes both the right of material custody, and the right of care.
The right of material custody implies that its holder has the right to have the child with him/her on a continuous basis and to claim his/her release from others.
As stated above, material custody is equivalent to custodial rights, and most parents have this right, since this right is part of the exercise of custody, which in most cases and regardless of whether the parents live together or not, is granted to both parents. Only in cases of exclusive custody, the other parent does not have a right of custody or a right of material custody.
The right of care is the right to observe the child's daily upbringing, for example: to administer physical care to the child, to decide on its movements and residence, to supervise the child.
Right to decide on fundamental options
This right has to do with the important choices in their child's life. These include the choice of religion, philosophy, ideology, language, school and type of education, membership of associations, medical choices (taking contraception, undergoing surgery, etc.).
3. Management of the minor's assets and power of representation
The right of management of assets means that the parents are entitled to perform all acts of technical management. Management does not mean enjoyment or disposition (= alienation), but is the mere organisation and handling of the management of the assets, such as performing acts of safekeeping, collecting and discharging income, paying overdue debts, e.g. hospital bills, renting out the immovable patrimony, etc.). Parents are legally liable for the management of the property (Art. 379, 1st paragraph old Civil Code).
While parents can also alienate property, these acts are not done in the context of managing the property, but as representatives of the minor. Acts of management are performed by parents in their own name, in their capacity as holders of the right to manage those assets.
The power of representation of parents means that they perform all kinds of legal acts in the name and on behalf of their child, as the minor is incapacitated. It involves performing all kinds of acts, as well as representation before court.
4. The right of supervision
The right of supervision belongs to the parent who does not exercise authority over the person and management of the child's property, i.e. in cases of exclusive custody by the other parent. This parent has the right to supervise the other parent's parenting and management. This right of supervision includes a double aspect: on the one hand, this parent can directly supervise the child's upbringing, and on the other hand, he can supervise the other parent. So that supervision does not remain a dead letter, this parent has the right to obtain all useful information both from the other parent and from third parties (school, bank, government, hospital, etc.).
5. Parental usufruct of the minor's property
Parental usufruct is similar to classic usufruct: the parents have the right of use (usus) of their children's property and may freely dispose of its fruits (fructus). Thus, the power of disposition (= possibility of sale) of the child's goods does not belong to usufruct. In principle, usufruct refers to the totality of the minor's goods, but the law provides for a number of exceptions (art. 387, 1st paragraph old Civil Code):
- Property acquired by the child through work as an employee or self-employed person does not fall under usufruct, but still under parental control;
- Property acquired by the child free of charge, for example by gift or will, if acquired with the express condition that the parents have no usufruct over it;
- Property which the child inherits by acting on its own account as heir in an estate from which its parent is excluded due to unworthiness (Art. 4.9 Civil Code).
The usufruct also applies to interest from the minor's savings accounts (e.g. Ghent 8 January 2004, NJW 2004, 740). In certain cases, a parent can be excluded from the usufruct. This is the case of the parent who is declared unworthy of inheritance.
The usufruct is intended as partial compensation for their obligation of maintenance. In addition, the usufruct also avoids family disputes between parents and children: at the end of the administration, the parents are only required to account for their management of the capital, and not the fruits.
Finally, the law provides for a number of burdens linked to the usufruct, including being responsible for living expenses (art. 386, 2° old Civil Code) and paying all periodic payments due that have to be made against the capital (art. 386, 3° old Civil Code).