Relevance of the Case
Establishing paternity of a child born out of wedlock requires completion of a medico-legal expertise report by the Institute of Legal Medicine, which holds competence. If the parties are foreigners, the expertise may be undertaken abroad by competent institutes via letters rogatory.
Once paternity is established, necessary civil status modifications follow. The court must decide on parental authority: the father’s passivity or lack of involvement may justify exclusive exercise of parental authority by the mother.
Regarding the amount of child support, one must first determine both the debtor’s means and the child’s needs. In foreign cases, information may be obtained from foreign authorities through letters rogatory.
According to Article 529 paragraph (2) of the Civil Code, when maintenance is owed by a parent, it is set at up to one-quarter of the parent’s net monthly income for one child, one-third for two children, and one-half for three or more. These abstract rates represent maximum limits.
In practice, when the maintenance debtor has high income, courts will set a monthly maintenance amount based on the child’s presumed or proven needs. In the absence of proof of particularly high monthly costs, Romanian courts are reluctant to award exorbitant sums simply based on the parent’s high income.
Proceedings in the Court of First Instance
In fact, from the relationship of the claimant (mother) with the defendant (father) a child was born whom the father did not recognize before the trial and who refused to fulfill his parental obligations, including monthly maintenance.
Through the statement of claim, the mother asked the court to establish that the defendant is the biological father of the minor, to order a change of the child’s surname including that of the father, as a consequence of establishing paternity, to award exclusive parental authority to the mother, to set the child’s residence with the mother, and to require the father to pay child support to the minor.
For determining paternity, a medico-legal expertise was ordered by the Institute of Legal Medicine in Cluj, but the defendant refused to attend DNA sample collection. Therefore, the court ordered expertise via letters rogatory. According to the medico-legal expertise carried out by a foreign institute of Serology and Genetics, after evaluating the results it was determined that paternity cannot be excluded.
The court examined parental authority: by law (Civil Code and Law 272/2004), although parental authority is generally exercised jointly by both parents, in justified cases—where the child’s best interest requires—it may be exercised exclusively by one parent.
In this case, it was found that the father (defendant) did not show interest in the minor, did not contest his lack of involvement, and undertook no efforts to be involved in the child’s life. The necessary cooperation for joint parental authority was missing, which could harm the minor’s development.
Considering the child’s best interests and the father’s lack of involvement, the court decided that parental authority should be exercised exclusively by the mother. However, the father retains the right to receive information about the child and to supervise her wellbeing, having not been deprived of parental rights. Based on favorable findings of a psychosocial investigation, the court ordered that the child’s residence shall be with the mother.
The claimant also sought change of the child’s surname to include the father’s name, following the establishment of paternity. The father opposed this request, arguing there is no reason. The court found that in absence of agreement, name change may be ordered only if it is in the best interest of the child.
The claimant cited tradition that children carry the father’s surname, but the court held this is not sufficient alone. It emphasized that the child has been raised exclusively by the mother, has no relationship with the father, uses the current surname (“Tămaș”), and attends kindergarten under this name.
Regarding maintenance obligation, family law litigators argued both mother and father are jointly obligated to maintain the minor, ensuring living necessities, education, schooling and professional training; in case of disagreement, basis of maintenance and method of execution and each parent’s contribution are decided by the guardianship court based on a psychosocial report.
According to Articles 499 and 527 of the Civil Code, both parents are obligated jointly to provide maintenance, including living necessities, education, training; in case of disagreement, contribution of each parent is established by guardianship court. The court considered legal obligation of parents in light of Articles 499 paragraph (1) and (4) and Article 529 of Civil Code. Under these provisions:
- Both parents are obligated, jointly, to ensure maintenance of the minor, which includes not only basic needs but also education, schooling, and vocational training.
- If there is a disagreement, contribution of each parent is determined by the court, based on a psychosocial investigation.
- Maintenance is owed proportional to the child’s needs and to means of the parent obliged to pay.
- In determining the means of the maintenance debtor, the parent’s income and assets are taken into account.
- For one child, maintenance cannot exceed one-quarter (¼) of the parent’s net monthly income.
In this case, the court found that the minor lives with the mother, who contributes in kind to her care. The father (defendant) lives abroad, and following administration of a letters rogatory, foreign financial authorities reported that he had significant income in the years in question, over €1,000,000 in a year.
The claimant asked for maintenance proportionate to up to ¼ of the father’s net monthly income, but not less than €10,000/month, arguing monthly expenses between €2,000-3,000 for raising the child. The court examined the submitted evidence (receipts, contracts, bank statements) and found that actual costs are approximately €2,000/month.
Considering his income and the child’s needs, but also the mother’s obligation to contribute, the court held that a fixed maintenance of €1,500/month from the father is reasonable. The court appreciated that although the father’s income is high, it does not alone justify a greater maintenance without concrete proof of greater needs for the child.
The ruling reflects observance of the legislator’s balance in regulation of maintenance amount, taking into account both real needs of the child and the parents’ income and ability to pay.
Proceedings in the Appeals Phase
The claimant submitted an appeal requesting change of the minor’s surname, as a result of establishing paternity. The claimant argued that regardless of the mother’s marital status relative to the father—that is, that they are not married—the minor is the child of the defendant and Romanian law recognizes equality of children born in marriage and out of marriage.
In addition, she argued that considering also the state’s obligation to support and protect family development, the child’s best interest is to have paternity recognized publicly, including by carrying the father’s surname. Also she asked for increase of maintenance obligation.
The defendant (father) submitted an appeal asking for parental authority to be exercised by both parents and reduction of maintenance amount.
The Cluj Tribunal, adopting arguments from Brisc Legal team, decided that the minor will bear the father’s surname even if the father disagrees, because it is in the child’s best interest to carry the father’s name; this public recognition of paternity is essential for the child’s emotional development. The minor is the child of the appellant father, and under Article 448 of the Civil Code, the minor has toward each parent and their relatives the same rights as a child born in marriage.
The child’s best interests prevail, and the court held there were no valid reasons not to let the child carry the father’s name. The minor’s father, a known person, must publicly assume parentage, and recognition thereof, including by surname, is essential for the child’s emotional development. In Romanian society a child bearing only the mother’s surname is often seen as having an unknown father, which can negatively impact emotional development.
Thus, in the best interest of the child, the claimant’s appeal is granted and the child will bear the father’s surname.
Regarding the appeals about maintenance amount, the Cluj Tribunal will take into account article 499 paragraph 1 of the Civil Code, which stipulates parents are jointly obliged to ensure that their minor child receives what is necessary for living, education and professional training. Also, under Article 47 of Law no. 272/2004, parents have responsibility to ensure adequate living conditions for the child’s development.
Regarding maintenance, the court will consider Article 529 of the Civil Code, which regulates that maintenance must be determined relative to child’s needs and the payer parent’s income. The Tribunal found the maintenance of €1,500/month reasonable, given the father’s income and the child’s needs.