Child Custody
Parenthood involves acquiring both rights and responsibilities in relation to one's children. Parents are obligated to care for, support, teach and educate their children, manage their property and represent them in civil matters. On the other hand, children remain under their parent's authority until they reach adulthood and are expected to follow their parent's guidance, as long as such guidance is following the law.
Maltese Law addresses the parent-child relationship through the concepts of parental authority and custody. Although these terms are not explicitly defined, a general distinction can be made; parental authority refers to the overall responsibility for the child's wellbeing, while custody focuses on the child's living arrangements. Even if a parent loses custody, this does not imply a loss of all parental rights; the parent who would have lost custody, still retains certain rights such as visitation, decision-making regarding the child, and being informed about the child's development.
Article 56 of Chapter 16 of the Laws of Malta1 states that in cases of personal separation, the court decides which parent will be granted the custody of the children. This custody may be awarded to one parent or shared between both parents. The primary concern in making this decision is always the best interest of the children. In order to determine this, the court evaluates various aspects of the child's life including but not limited to the preferences of both parents and the child, the child's relationships and interactions at home, school and in the community as well as the physical and mental health of all parties involved.
In order to make a well-informed decision, the court may also appoint medical and psychological experts to assess the family dynamics and provide recommendations accordingly. These assessments assist the Judge in making the most appropriate decision for the child's well-being.
Evidently, the allocation of child custody and access are guided by 'The best Interest of the Child' principle. This means that whenever a legal and/or physical custody dispute arises before the court, the Judge is constrained to decide in the best interest of the child irrespective of the parent's wishes. As enunciated in "Darmanin vs Cassar"2;
"... Meta tiġi biex tiddeċiedi dwar kura u kustodja ta' minuri, il-Qorti ma għandhiex tkun iddettata u kondizzjonata mill-meriti u dimeriti tal-partijiet 'ut sic' iżda biss x'inhu l-aħjar interess tal-minuri".3
In typical situations, both parents play a crucial role in their children's upbringing and excluding one parent from this responsibility should only happen under exceptional circumstances. The court will only take such an extreme step if there are serious reasons to do so, always prioritizing the best interests of the child. The court must consider whether in the particular case, removing a parent's parental authority truly serves the child's well-being.
Parental authority can end either automatically by law or through a court order. Legally, it ceases if both parents pass away, when the child turns 18 years of age, marries or leaves home to establish an independent household. The court may also strip a parent of their parental authority partially or fully under specific circumstances, such as if the parent:
- Exceeds reasonable disciplinary boundaries;
- Mistreats or neglects the child's education;
- Behaves in such a way that threatens the child's upbringing;
- Is legally incapacitated or otherwise restricted in certain actions; or
- Mismanages the child's property or fails to meet their responsibilities to care for, support, instruct and educate the child.
In severe cases, both parents may also be deprived of these rights, and the child may need to be placed in alternative care. Furthermore, during personal separation proceedings, the court has the discretion to remove parental authority from one or both parents if necessary. In a relatively recent judgement4, the court emphasized that disagreements between the parents alone are not enough to justify such a measure. Otherwise, parental authority would be taken away routinely rather than in exceptional cases. The law aims to grant the court flexibility when parents are no longer living together.
THE BEST INTEREST OF THE CHILD VIS A VIS THE FATHER'S RIGHTS
In Malta, societal perception of gender roles, deeply rooted in traditional values, can significantly impact the father's experience during family law disputes. While Malta has made strides in gender equality in recent years, traditional views of gender roles often still linger, influencing both legal proceedings and societal attitudes. These traditional roles typically see men as breadwinners and women as primary caregivers, which can shape expectations in family law cases.
Maltese society often regards women as the primary caregivers, which can influence care and custody decisions in separation proceedings. Despite several legislative reforms concerning shared parenting responsibilities, the courts still tend to lean towards granting the mother primary custody, especially when infants are involved.
In 2024, fathers are still facing very real challenges if they wish to obtain joint or full custody, often finding themselves having to counter societal biases that expect women to be the main caregivers. Moreover, fathers who have not been actively involved in day-to-day parenting before the separation may face additional hurdles – Parental alienation being one of these hurdles.
Recent Family Court Reforms have been announced by the Ministry of Justice aiming to mitigate the distress caused by family legal disputes.
Footnotes
1. The Civil Code.
2. Mario Darmanin vs Annalise Cassar, Court of Appeal, 31 October 2004
3. "When deciding on care and custody, the court should not be dictated and conditioned by the merits and demerits of the parties 'ut sic' but only by the children's best interests".
4. Civil Court (Family Section) 291/2018, (AF v. Dr Yanika Bugeja and PL Gerald Bonello as curators of the absentee AF decided on the 13th October 2020).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
