Monaco adopts a law on alternating residence for children of separated parents, here's what will change

Having been committed to modernizing family law for several years, the Principality of Monaco has just taken a new step forward with the vote, this Wednesday evening in the National Council, of a bill relating to the alternating residence of children of separated parents.

The text, resulting from Bill No. 261 adopted by elected officials almost a year ago, provides that the guardianship judge may, "when the best interests of the child" justify it, "order alternating residence at the home of each of the parents," even in the absence of agreement from one or both parents.

"Proof of progress" for elected official Guillaume Rose, "a major step forward," according to Karen Aliprendi, "a fair choice" in the eyes of Maryse Battaglia.

With this reform, in fact, the city-state is now in compliance with the international conventions that it has previously ratified, in particular the New York Convention of November 20, 1989, which stipulates that "the best interests of the child must be a primary consideration."

The "provisional" period becomes optional

Until now in Monaco, joint residence, introduced in Law No. 1450 of July 4, 2007, could only be pronounced by the magistrate with the prior mutual agreement of the parents.

Which, in the event of conflicts between the two, could bog down the situation, particularly judicially, to the detriment of their offspring and their well-being.

"The current framework unfairly penalizes the non-custodial parent, often the father," noted the SOS Divorcés Monaco association, one of the eight entities involved in the legislative work.

Initially, the Prince's government wanted alternating residence to be ordered first and systematically "on a provisional basis" for a fixed period, before it became definitive (or, failing that, for residence to be fixed with one of the parents).

At the end of an institutional dialogue, the executive granted the National Council that this provisional nature remains optional in the judge's decision.

"The Commission [on Women's Rights, Family and Equality] was concerned about the foreseeable excesses of adopting a mechanism (...) which could be interpreted as a 'probation period' , likely to encourage, in the most conflictual situations, harmful manoeuvres to ultimately obtain a judicial decision more favourable to one of the parties," argued elected representative Christine Pasquier-Ciulla in her report.

Another argument: to reduce the risk of complicating the procedure in a dispute that is already particularly dense. Finally, the elected official recalled that any decision relating to parental authority is revisable as soon as one party (father, mother or public prosecutor), in the presence of a new fact, refers the matter to the judge.

"Alternating residence does not mean alternating conflict"

Before the vote on this text, which did not receive any dissenting votes, the interim Minister of State, Isabelle Berro-Amadeï, spoke.

"The law is not just a framework: it is also a support, a guarantor and, sometimes, a lever for calming down fragile life paths ," she declared. "Through this text, we reaffirm that the child's interest cannot be dependent on adult conflicts, and that the public authorities have the mission of establishing fair and stable benchmarks around which the child can continue to build themselves."

The same speech was made on the other side of the Chamber, with Christine Pasquier-Ciulla, who believes that "alternating residence does not mean alternating conflict but a permanent link" .

"In deep-rooted conflicts, this will allow the child to spend equal time with both parents and thus potentially attempt to escape the loyalty conflict in which they are too often caught up. Of course, there is no miracle solution in this matter and each situation is different."

"The text sets a course"

Indeed, before making a decision, the guardianship judge has the possibility of ordering investigative measures to inform him about the situation and, ultimately , about the best solution to offer.

"The judge is not forced into alternating residence, but it is a new possibility that is offered to him, because previously the parents' agreement was required," says Christine Pasquier-Ciulla.

And Béatrice Fresko-Rolfo continued: "The bill does not claim to erase the conflict, but it sets a direction. That of preserving the bond, of loving continuity and of reconstruction. In a society where family models are evolving, where women are taking their place and where fathers are fully assuming theirs, we must guarantee real equality in parenthood after separation (...) This bill is about saying to each child concerned: 'You are at the center of our concerns' ."

Moreover, and fortunately, the judge can take into consideration the opinion of the child concerned during the procedure, even though the child is not a party to the proceedings.