„Lupta” părintelui pentru dobândirea calităţii procesuale active în acţiunea privind decăderea din exerciţiul drepturilor părinteşti a celuilalt părinte
The “battle” of the parent to obtain active procedural role in the action regarding the termination of the other parent’s exercise of parental rights

Summary/Abstract: By Decision no. 30/2023, the Constitutional Court of Romania rejected the exception of unconstitutionality of the provisions of art. 508 of the Civil Code, invoked in relation to the fact that they do not provide for the capacity of the other parent to request the forfeiture of the exercise of parental rights, but give procedural legitimacy only to “public administration authorities with attributions in the field of child protection”. This article aims to highlight the arguments intended to justify a future jurisprudential revival in this matter, emphasizing that the right of free access to justice is practically violated for the parent who has not been recognized with the active procedural capacity to file a claim to deprive the other parent of the exercise of parental rights, access that involves a direct way of reporting to the competent court, and not a “mediated” access by the guardianship authority. Moreover, the right of any person to address the competent court, for the defense of a right, an interest or for the protection of a violated freedom includes, among other things, the respect of the right to a fair trial, which implies access to an independent and impartial judge, in front of whom the evidence must be administered in compliance with the fundamental principles that govern the matter of the process, including the principle of immediacy. In these circumstances, even if the guardianship authority is seen as a balancing factor in family disputes, the role assigned to it by the Constitutional Court of Romania, that of a “filter” intended to relieve the courts of possible abusive exercise by one of the parents of the minor of the claim of parental rights exercise termination against the other parent, is not justified. The judge has at his disposal the necessary procedural means to repress the abuse of law, regardless of whether it concerns the matter of substantive law or the matter of procedural law, and the principle of separation of powers in the state does not allow the interference of any entity belonging to the sphere of executive power in the work of administering justice.

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