Legal capacity

Greetings,

I have a question. Can legal capacity be obtained only after marriage or also after the birth of a child? I heard that the law changed on September 1, 2014.

Yes, you heard right, with changes to the Family Act, minors no longer have the possibility of acquiring legal capacity on the basis of the birth of a child. Legal capacity before the age of 18 can only be acquired by marriage with the special approval of the court. The new law sets the age limit for marriage at 18 years. Exceptionally, a court may, in non-contentious proceedings, allow a person who has reached the age of sixteen to enter into marriage if it finds that he or she is mentally and physically ready for marriage and that the marriage is in accordance with that person’s well-being. The new law regulates in Article 114, the so-called suspension of parental care due to legal obstacles, which in fact prevents the minor parent from independently representing the child in relation to decisions relevant to the child EXCEPT regarding the determination of the child’s personal name. In practice, this means that you, as a minor parent, will only be able to give the child a name, and for all other tasks related to, for example, registration of residence, representation in court, deciding where the child will live, etc., the legal representative for your child determined by the court or the Social Welfare Centre will be in charge. What is important to know is that Article 114 also regulates the case if you do not agree with the important decisions made for your child by the appointed legal representative; you as a parent have the right to appeal to the court that will then decide in a non-contentious proceeding. As soon as you reach the age of 18 or acquire legal capacity by entering into marriage, the suspension of parental care suspension due to legal obstacles ceases and you acquire full parental care.

Due to significant changes in the law, the following articles are important in their entirety: Suspension of parental care due to legal obstacles 

Article 114 

(1) The suspension of the exercise of parental care due to legal obstacles occurs in cases when the parent of a child is a minor or a person deprived of legal capacity in the part in which he / she is unable to exercise parental care. 

(2) While the parental care is suspended, the parent referred to in paragraph 1 of this Article may exercise daily childcare independently or together with the other parent of the child or the child’s guardian appointed in accordance with Article 224, items 3 and 4 of this Act. 

(3) The parent referred to in paragraph 1 of this Article may not represent the child, and if he / she is deprived of legal capacity, he / she may not represent the child in the part in which he / she is deprived of legal capacity. The child is represented by the other parent or guardian of the child who is obliged to respect the opinion of the parents referred to in paragraph 1 of this Article. 

(4) In case of disagreement between the child’s parents or the parents referred to in paragraph 1 of this Article and the child’s guardian regarding the child’s representation in relation to decisions relevant to the child referred to in Article 108 of this Act, the court shall in non-contentious proceedings make a decision to determine who will represent the child in the matter. 

(5) As an exception to the provisions of paragraph 3 of this Article, a minor parent may assign a personal name to a child. 

(6) The suspension of the exercise of parental care due to legal obstacles shall cease when the reasons for which the suspension of exercise of parental care was introduced cease to exist.

 

Prerequisites for appointing a guardian to a child

Article 224

A child shall be placed under guardianship if its parents: 

1. died, disappeared, are unknown or have been of unknown residence for at least one month 
2. are deprived of the right to parental care 
3. are deprived of legal capacity in the part that prevents them from exercising parental care 
4. are minors, and have not acquired legal capacity by marriage 
5. are absent or prevented and unable to take care of their child, and have not entrusted the exercise of parental care to a person who meets the conditions for a guardian or 
6. gave consent for the adoption of the child.

 

Realization of personal relations between the child and the parents 

Article 119

(1) A child has the right to have personal relations with a parent with whom he or she does not live, and a parent who does not live with a child has the right and duty to have personal relations with the child, regardless of his or her right to parental care. 

(2) Parents and other persons living with the child and caring for the child are obliged to enable the child to have personal relations with the parent referred to in paragraph 1 of this Article and to refrain from any behaviour that would hinder personal relations with the child. 

(3) The parent referred to in paragraph 1 of this Article shall not have the right to establish personal relations with the child only if this is prohibited by a court decision.

 

Prohibition of adoption of a child of minor parents

Article 183 

(1) A child of minor parents may not be adopted. 

(2) Exceptionally, a child of minor parents may be adopted after one year from the birth of the child if there is no prospect that it will be raised in the family of the parents or grandparents or other close relatives. 

(3) The adoption referred to in paragraph 2 of this Article requires the consent of minor parents 

1. Consent to adoption and consent procedure

Consent of the child’s parents 

Article 188 

(1) The consent of the child’s parents is required for adoption, unless otherwise provided by this Act. 

(2) When consent to adoption is given by a minor parent or a parent deprived of legal capacity, regardless of the part in which he / she is deprived of legal capacity, they must be able to understand the meaning of consent to adoption, and the Social Welfare Centre shall inform them in an appropriate manner on legal and factual consequences of child adoption. 

(3) If a parent deprived of legal capacity is unable to understand the meaning of consent to adoption in accordance with paragraph 2 of this Article, his / her consent may be replaced by a court decision in accordance with Article 190, paragraph 1, item 3 of this Act. 

(4) A parent may give consent for his / her child to be adopted by an adoptive parent known to him / her only if the child is adopted by the spouse or common-law partner of the child’s parent. 

(5) The consent of the parents is not obligatory if the parent: 

1. died, disappeared or is unknown or 
2. is deprived of the right to parental care. 

(6) The parent may withdraw the consent to the adoption within thirty days from the signing of the minutes on the consent to adoption.