Interesul superior al copilului: un concept supraordonat. Propuneri de lege ferenda privind separaţia judiciară a părinţilor
Best interest of the child: a superordinate concept. De lege ferenda proposals on judicial separation of parents

Summary/Abstract: The de facto separation of parents appears as a grey area of chance, based on the absolute personal freedom of parents to separate either by agreement or by the unilateral act of one of them. If all the rules on the subject presuppose that it is in the best interests of the child to be brought up by both parents, the separation of the parents, which necessarily implies the separation of the child from one of the parents, is a serious and grave fact, which can be presumed by the legislator as a situation of risk, likely to prejudice the best interests of the child. How can the negative effects of unilateral de facto separation of parents be limited, in particular if this is done by moving the child of one of the parents from the mutually agreed home? Judicial separation of the parents, in the absence of their agreement, may constitute a legislative solution which undeniably offers many advantages over separation produced by the unilateral act of one of the parents. Court intervention after unilateral separation has already taken effect, sometimes at a significant interval of time, comes against a background where justice and the child have already lost ground in the conflict between the parents and the facts are far ahead of the law. A judicial separation of parents procedure would reverse the roles and allow the right to be ahead of, or at least simultaneous with, the facts and to be able to genuinely influence parental conduct in the best interests of the child.

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