Foreign couples who have created a family unit and who are faced with a situation where the relationship broke down frequently struggle with the difficult decision of who will have care and custody over their minor children. This challenge becomes even more complex when one of the parents plans to relocate to another country while the other parent wishes to remain in Malta.
To help clarify the process of safeguarding your rights as a foreign parent living in Malta, here are some essential insights:
Legal Standing of Foreign Nationals residing in Malta in relation to Judicial Proceedings
Individuals who are not Maltese citizens and who are residing in Malta possess the same legal entitlement as Maltese nationals to initiate legal proceedings within the Maltese territory. This means that foreign parents can protect their parental rights within the Maltese legal system.
The Role of Mediation
Maltese law stipulates that where disputes arise between parties, whether the parties are married or not, concerning the custody and maintenance of, or visitation rights to their children, mediation is mandatory before the proceedings carry on judicially.
Mediation takes place in an informal setting before a mediator appointed by the Family Court. The Court will give a fixed number of sittings in which the parties are to reach an agreement within the mediation process. The agreement then has to be formalised in the form of a contract. The contract will have to be approved by the judge of the case. Once the contract is approved the parties are ordered to sign it before the notary who would have compiled the draft.
Where the parties do not reach an agreement within the fixed number of sittings of mediation, the case is heard by a judge sitting in the Family Court. It will then be the Court which will order all issues in relation to the maintenance, access rights, care and custody as well as parental authority according to the evidence brought before it.
Extreme situations where one parent is being denied their rights.
In a situation where a parent is being denied any form of access ie time in the presence of his or her child, or if a parent is not maintaining his or her child financially, the other parent can seek a quick legal remedy in the form of an urgent Court Application. The Court will give a temporary order on the matter while proceedings are ongoing. Such a Court Application can be filed at any point during a Court action where it is referred to as Pendente Lite, meaning during litigation.
Care and Custody
Care includes the tasks associated with raising a child on a daily basis, such as clothing, meals, and extracurricular activities. On the other hand, custody is related to parental authority, including decisions on the child’s education. Custody is normally granted jointly between both parties, however, in some specific circumstances, the Court can decide to grant sole custody to one parent only.
Access arrangements grant non-custodial parents or other family members the right to spend time with the child. During mediation the parents would need to agree on the access times as well as who gets to spend time with the child on weekends and during annual holidays. If a parent has access rights to his or her child but is being denied such access, an urgent Court Application may be filed and the Police can be resorted to enforce the Court order.
Access rights keep being exercised even when a parent does not reside in the same country as the child, or if a parent goes on holiday. This is done through electronic means.
According to Article 3B of the Civil Code, parents are required to support their children financially until they become 18, or 23 if the child continues full-time studies till the age of 23. This maintenance doesn’t cover education and health expenses. Therefore, half the expenses of education and health expenses are also legally owed over and above the maintenance payable.
The calculation of the maintenance is done on the legal requirement that it depends on the needs of the child and the means of the parent who owes the maintenance.
What if I am a parent taking care of my child but I’m not receiving the maintenance I am supposed to receive to be used for the care of the child?
In such a situation, Maltese law provides a legal remedy under the Criminal Code whereby the enforcement of the maintenance can be sought in the Criminal Court. Failure to pay can lead to a prison sentence.
Maltese Courts have established a legal principle that the payment of maintenance to one’s children is an absolute obligation and therefore the Court will not accept any justification for non-payment. The parent in default will be ordered to pay the amount due by the Court.
All contracts determining family matters as well as judgements of the Maltese Courts are immediately enforceable in all EU Member States and there is no need for further judicial proceedings in an EU country. When it comes to the situation in third countries, the procedures may differ, however in the vast majority of countries such matters are enforceable.
Seek Legal Advice
Foreign parents residing in Malta are encouraged to consult a lawyer for advice and to discuss the appropriate course of action in enforcing their rights as a parent. Maltese law provides a number of remedies to safeguard one’s rights and foreign nationals in Malta can make full use of such legal remedies.
Av. Paul Radmilli
Mifsud & Mifsud Advocates
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.