1/1/1900
Criteria for determining the value of the child’s support for the minor child resulted from marriage
The divorce petition, besides the divorce claim, may also contain ancillary claims, such as the child’s support that should be paid by the parent who doesn’s have the minor in custody. According to the Romanian Family Code (art. 42), the parent who does not have the custody of the minor child has the legal obligation to support the minor child after divorce, by paying a periodic amount, representing his contribution to the child’s maintenance, education, sustenance to assure the child’s professional training etc.
The determination of the amount of the maintenance support can be done by consent of both spouses. In case the spouses do not come to an agreement, the value of the maintenance support shall be determined by the court. In case the parent who has the minor in custody waives to this support, which represents the right of the child, the court shall approve this, only if the respective parent proves to have sufficient material resources to ensure the best conditions to the child.
According to the Romanian Family Code, the maintenance support is due proportionally with the needs of the spouse who requires it and with the means of the spouse who has the obligation to pay the support.
In most cases, the maintenance support is determined based on the incomes of the non custodial parent (for example, on his salary). It is based on the regular income, not the accidental (additional) payment such as for overtime work, travel or transfer allowances, compensation payment etc. In case the non custodial parent cannot prove his income (for example, in case of undeclared work or in case he doesn’t have a job at the moment of the trail), the court will determine the maintenance support according to the amount representing the national minimum salary.
The court shall determine the child’s maintenance by taking into consideration the following criteria: if the non custodial parent has in custody other minor children from a prior or subsequent marriage, or if the non custodial parent has the custody of other minor children at that time.
The maintance support can be effectively performed in kind or by financial support. The court will decide upon the way of execution, considering the particular circumstances. The amount of the financial maintenance support shall be set to maximum a quarter of the salary of the non custodal parent - for one child, a third for two children, and one half for three or more than three children. In most of the cases, the court decides the non custodial parent to pay the maintenance support as a monthly amount.
The maintenance support shall be paid by the non custodial parent begining with the date as decided by the court; this obligation lasts until the child reaches the age of majority (until the child is 18, according to the Romanian law). In case the child reached majority and he is attending the university of other form of higher institutionalised education (day classes), he shall be entitled to maintenance support at the latest until the age of 26, provided that he will not simultaneously be an employee.
The increase and the decrease of the maintenance support
The court may decide to increase or decrease the amount of the maintenace support or may decide to cease it, in case the circumstances change – respectively the changes affecting the financial possibilities of the non custodial parent and to needs of the custodial parent. For instance, if the obligor has a change in income or faces financial hardship, he may petition the court for a reduction in support payments. Examples of financial hardship include supporting other children, unemployment, extraordinary health care expenses etc. Or, in case the income of the non custodial parent increases, the other parent may petition the court in order to increase the child’s support ccordingly.
To this respect, any of the parents have the right to petition the court for a support order adjustment.
Sanctions in case of default of paying the child’s support
According to the Romanian Penal Code (article 305 regarding the family abandonment), in case the non custodial parent fails to execute his obligation of payment the maintenance support, as set by the court, he shall be subject to imprisonment from 1 to 3 years or to fine. The criminal procedure shall be initiated at the complaint of the other parent. Reconciliation of the parties extempts the offender from criminal liability; even if the parties did not reconcile, but during the trial the defendant fulfills his obligations, the court, when determining his guilt, shall decide the conditional suspension of sentence.
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