Opinii privind exercitarea exclusivă a autorității părintești în cazul decesului unuia dintre părinți
Opinions on the exclusive exercise of parental authority in the event of the death of one of the parents

Author(s): Marius-Ionel Nicolau
Subject(s): Civil Law
Published by: Universul Juridic
Keywords: the exclusive exercise of parental authority; deceased parents; minor
Summary/Abstract: As a rule, the parental rights and duties ― those related to the minor as well as those related to his/her property — are exercised by both parents jointly and equally by virtue of full equality of rights of the parents, which is an additional guarantee in regard to the protection of the best interest of the minor. Thus, on the basis of this fundamental principle, the parents do not act in a dispersed manner, each on his/her own, but in concert, as they are obliged to unite their efforts for an overall action. The rule that both parents exercise parental authority in common cannot lead to the conclusion that there can be no situations ― whether in law or in fact — in which its exercise rests entirely with only one of the parents. Thus, if one of the parents is deceased, declared dead by a court order, declared mentally incompetent, is suspended from the exercise of parental rights or, if for any reason is unable to express his or her will, the other parent exercises parental authority alone. Interpreting the provisions of art. 110 par. (1) of the Civil Code, one can see that the death of one of the parents automatically leads to the exclusive exercise of parental rights and duties by the surviving parent without the need for the intervention of the Central Family Court respectively when the end of the parental rights and duties of the deceased spouse occurs. The transmission of the exercise of parental authority to the surviving parent is simple and complete in the sense that it is accomplished through the mere fact of the death of the parent exercising the parental authority in common and covers the entire ensemble of parental rights and duties. The ensemble of the prerogatives of parental authority is given to the remaining parent, under the sole reserve of the rights that could not have been withdrawn from the parent affected by a partial forfeiture. Intervening by virtue of law, the transmission is carried out in full and it is not necessary for the holder to request it in court

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