Archive note: This text comes from the old archive of Nomika Epilekta and is preserved with care for historical and informational reading.

(decision no. 5203/2012 of the Single-Member

Court of First Instance of Athens)

By decision no. 5203/2012 of the Single-Member Court of First Instance of Athens (interim-measures division), the issue of custody over the five-year-old son of his separated parents was regulated, and the child was delivered to his mother after the joint hearing of two opposing applications, one filed by each separated spouse, and after the rejection of the father's arguments that he should assume the right of custody because the mother was unfit.

It is noted that the guiding criterion is the interest of the minor, or of the minors, as to which parent will assume custody over the child. Custody forms part, a subset, of parental responsibility, which both parents retain after their separation and also after the dissolution of their marriage.

According to the reasoning of the decision, the following facts were considered probable.

The minor's parents entered into a religious marriage on 22.04.2007 in Athens, and their child was born on 14.07.2007. The parties' marital cohabitation ended on 24.03.2011, when the minor's mother was forced to leave the family home because of the insulting, threatening and violent conduct of her husband, the minor's father.

The minor father's allegation that his wife abandoned him and their minor son without reasonable cause was not considered probable. The court's judgment on this point is based on the document dated 29.03.2011 of the Peristeri Police Department, to which the applicant mother had resorted, complaining about the conduct of her opposing spouse and reporting incidents that might fall under the law on domestic violence, while the same document notes that the husband refused to hand over the minor child to her when she left. After leaving the marital residence, the applicant was initially hosted in a friend's home, from where she went daily to the marital residence in order to visit and care for her minor son, while at the same time she took lawful steps to claim his custody by filing before the court the present application requesting that the custody of the minor be assigned to her by temporary order. After that request was rejected, on 19.04.2011 she moved to Heraklion, Crete, where she comes from and where her family lives, since she was unable to find employment in Athens and was facing serious financial difficulties. In Crete she works as a singer in an events hall, working only on weekends. On this basis, it is considered probable that the true interest of the parties' five-year-old minor son requires, because of his young age, that custody over him be temporarily assigned to the applicant, his mother, who throughout the period from her departure from the marital residence until the hearing of the application took the necessary steps to participate in the minor's life, surrounding him with love and affection, since she traveled from Crete to Athens in order to see and care for the minor, while she also had daily telephone communication with him. Moreover, because of her limited working hours, the applicant has free time to devote to the upbringing and custody of her child.

Consequently, the applicant and respondent, despite the love he undoubtedly feels for the minor, cannot cover the minor's need for the maternal presence, which is particularly intense because of his young age and absolutely necessary for his subsequent smooth psychosomatic and emotional development. The court's judgment on the above is also based on the fact that during the summer of 2011 the respondent went to Heraklion with the minor and left him with the applicant for an entire week two to three times a month, an action he clearly would not have taken if the applicant had been unfit to exercise her maternal duties, an allegation that was not considered probable.

Furthermore, it is considered probable that the respondent, as a jewelry merchant, frequently visits Heraklion, Crete, for professional reasons and in fact maintained a rented residence there, so he will be able to visit and communicate with the minor at regular intervals.

Furthermore, it was considered probable that the above minor son of the parties, having no property and no income from work because of his minority, is entitled to maintenance in money from his respondent father. The measure of monetary maintenance, determined on the basis of the child's needs, as these arise from the conditions of his life, amounts monthly to 450 euros.

Further, as regards the property situation of the applicant and respondent, it is considered probable that he holds co-ownership shares in ten leased properties, which in 2009 yielded him income of 12,361.29 euros and in 2010, 12,566.54 euros.

Then, after calculating the other income of the minor's father as well as his financial obligations, including rent, loan amounts and other living expenses, the court considered probable by the above decision that the income appearing in the tax return of the applicant and respondent does not reflect his real financial situation, as shown by the expenses he incurs monthly.

Therefore, the respondent can contribute to the monthly maintenance of his minor son in the amount of 350 euros, and the remaining amount of 100 euros for the maintenance of the parties' minor son burdens the applicant mother, after partial acceptance of the respondent's lawful objection regarding contribution, under Article 1389 second sentence of the Civil Code, since from her work she receives the monthly amount of 800 euros, while she pays 370 euros monthly as rent for her residence.

The respondent is obliged to prepay the above maintenance amount in money every month (Article 1496 first sentence of the Civil Code).

To avoid substituting the main proceedings with the interim measures ordered by this decision, the court holds that the custody of the person of the parties' minor child and his maintenance must be regulated by a final decision on a relevant action by the parties concerning the above matters, for the filing of which a time limit must be set under Article 693 § 1 of the Code of Civil Procedure.

For these reasons the court, jointly hearing the applications in the presence of both parties dated 12.04.2011 and 21.09.2011, rejects the application of the minor's father dated 21.09.2011, while partially granting the opposing application of the minor's mother dated 12.04.2011. It temporarily assigns to the applicant custody over the person of the parties' minor son. It temporarily orders the respondent to pay to the applicant, as the person exercising custody over the person of the above minor, within the first five days of each month, maintenance of 350 euros monthly for the above minor for the period from service of the application onward, with statutory interest from the delay in payment of each periodic installment until full payment. It sets a time limit of sixty days from service of this decision for the filing of an action by the applicant, the minor's mother, against the respondent concerning the above matters, custody and maintenance, and offsets the litigation costs between the parties.

This is a well-aimed judicial judgment, by which the issue of with which parent the five-year-old boy would reside was regulated temporarily, on the basis of probability as the law provides, where the child had been removed from his mother because of the disagreement, conflicts and disputes of his parents, as was the amount of maintenance that the minor's father must pay, the father having also temporarily lost the right of custody.