Despre scindarea autorităţii părinteşti şi „motivele temeinice” care justifică măsura. O scurtă analiză
On the sharing of parental authority and the “good grounds” that justify the measure. A brief analysis

Summary/Abstract: The exercise of parental authority exclusively by one of the parents should represent in our legal system an exception from the rule according to which the exercise of parental authority belongs to both parents. Nevertheless, in practice, the exception tends to become the rule. An increasing number of judicial claims, having as the main or secondary object the exclusive exercise of parental authority, are being registered on courts dockets, and in those claims a series of “motifs”, that tend to be considered sound for lending to such a “sanction”, are being alleged. It is true that the legislator exemplifies certain behaviors that can be categorized motifs that may lead to the exclusive exercise of parental authority, but those should not automatically lead to such a solution. Instead, the factual circumstances should be reported to the child’s best interests in order to establish to what point the exclusive exercise of parental authority is proportional with the alleged and proven motif or motifs by considering the child’s best interests. In the present paper, after a short introductory section in which we have presented the evolution of child’s protection form “parental power” to “parental authority”, our attention focuses on the legislator’s optic on coparenting, underlining its tendency to parental accountability. Later, in order to clear the significance of the phrase “sound motifs” used by the Article 398 Civil Code, we have analyzed the motifs provided as examples by the legislator in Article 36 par. (7) of Law no. 272/2004, in order to bring some necessary clarifications. Finally, the scope of the paper is to underline the fact that in order to state the exclusive exercise of parental authority, a reasonable proportionality should exist between the parental authority exclusively exercised by one of the parents, as mean of ensuring the safeguard of the child’s best interests, and the protection of the person, in order to avoid an excessive burden on the minor.

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