What is parental authority?
Parental authority means the authority that parents have over their minor child(ren).
From the moment the minor has one or two parent(s), then parental authority exists. It does not matter whether the parents live together, are married, or how the parentage relationship between the parent and the child was established. Being a mere ‘parent’ makes one a holder of parental authority. There is parental authority until the child comes of age or is emancipated (art. 372 old Civil Code).
When both parents are still alive, they exercise parental authority jointly, regardless of whether they live together or not (art. 373 and 374 old Civil Code).
If there is only one parent, e.g. the other parent is deceased or legally incompetent, he/she exercises parental authority alone (art. 375, 1st paragraph old Civil Code).
If the minor has no parents, there is no parental authority, but guardianship authority. Even then, the minor is under a (different) form of custody (art. 375, 2nd paragraph old Civil Code).
What is included in parental authority?
Parental authority consists of a whole range of powers for parents towards their minor children. These are called the components of parental authority and are the following:
- The right to personal contact (art. 374 §1, 4th paragraph old BW);
- The authority over the person of the minor (art. 373-375 old Civil Code);
- The management of property and power of representation (Art. 376-379 old Civil Code);
- The right of supervision of upbringing and management (Art. 374 §1, 4th paragraph and 376, 4th paragraph old Civil Code);
- The usufruct of the property of the minor (art. 384-387 old Civil Code);
- The parental powers regarding the state of the minor's person, such as consent to marriage (art. 148 old Civil Code), consent to adoption (art. 348-3 old Civil Code), exercise of the right of option regarding the surname, etc.
When does parental authority start?
Parental authority starts as soon as the parentage of the child is established. This is the case with an ordinary (biological) filiation or an adoptive filiation, but always from birth at the earliest. Any claims against a foetus can therefore not and do not belong to parental authority.
When does parental authority end?
Parental authority ends:
- upon the child's coming of age or emancipation (art. 372 old Civil Code);
- upon the death of the child;
- upon the death of both parents (or sole parent);
- when both parents (or sole parent) are in the constant impossibility of exercising parental authority;
- when both parents (or sole parent) are completely deprived of parental authority (sections 32-35 Youth Protection Act).
In certain cases, parental authority stops with the parents only, namely in cases of regular and full adoption.
In other cases, parental authority stops partially, which is the case of:
- partial deprivation of parental authority;
- foster custody;
- the award of the child's material custody to a third party;
- the appointment of foster carers.
The components of parental authority