Who exercises the parental authority?
In principle, parental authority is exercised by both parents jointly. The joint exercise of parental authority by the parents is the rule. It does not matter whether the parents are still living together or not, they continue to exercise parental authority together. When parents are not living together, this is also referred to as co-parenting (art. 373 and 374, § 1, paragraph1, old Civil Code).
When there is only one parent, that parent alone exercises parental authority (Art. 375,1st paragraph old Civil Code).
If the parent himself is a minor, he can still exercise parental authority, even if he himself is still under parental authority. It therefore does not matter that he is legally incapable.
The adoptive parents, like normal parents, also have parental authority. No distinction is made between full and regular adoption. Nor is a distinction made between same-sex and different-sex adoptive parents (sections 353-9 and 353-10 old Civil Code).
The stepparent cannot legally exercise parental authority. No parental authority is granted to third parties.
How does parental authority work?
For practical reasons, either parent can act alone. With regard to third parties, there is a presumption of consent. It may therefore be assumed that each parent acting alone has the consent of the other parent (Art. 373,§1 and 374, §1,§1 old Civil Code).
If cohabiting parents cannot agree on matters or one parent refuses to give consent, a parent can go to the family court. The court can then authorise one of the parents to perform certain acts alone (art. 373, 3rd and 4th paragraphs old Civil Code).
For non-cohabitant parents, one of them can go to the family court to request exclusive parental authority, whether partial or complete (art. 374, §1,2nd-3rd paragraph old Civil Code).
For a further explanation on this, we would like to refer to the following Wanted Wiki: What is exclusive parental authority?
Disqualification from parental authority
Parents can also be deprived of parental authority. Article 32 of the Youth Protection Act provides three cases when a parent can be disqualified, namely when:
- The parent has been criminally convicted for offences committed on the person or with the help of one of the children;
- The parent endangers the health, safety or morality of the child through ill-treatment, abuse of authority, apparent bad behaviour or gross negligence;
- The parent marries a person deprived of parental authority.
The disqualification can be partial or complete. In partial disqualification, the court determines what rights the parent may still exercise. With full disqualification, on the other hand, the parent will not be allowed to exercise any rights related to parental authority, this includes:
- Exclusion from the right of custody and upbringing;
- Inability to represent the child, consent to their actions and manage their property;
- Exclusion of the right to enjoyment, as referred to in Article 384 of the old Civil Code;
- Exclusion of the right to claim maintenance;
- Exclusion of the right to obtain all or part of the child's estate.
Likewise, the parent will no longer be able to give consent in the context of child adoption when he is completely disqualified. Moreover, complete disqualification also renders the person incapable of being a guardian, foster guardian, supervising guardian or curator (art. 33 Youth Protection Act).
This disqualification is pronounced by the juvenile court at the request of the public prosecutor (art. 32 Youth Protection Act).
Disqualification does not mean that the parent may no longer have contact with his child, only that he will no longer be allowed to (fully) exercise the rights related to parental authority.
To exercise the disqualified rights, the court will appoint a pro-guardian (art. 34 Youth Protection Act).
The components of parental authority