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39 Fam. L.Q. 301 (2005-2006)
Custody and Separated Families: The Example of French Law

handle is hein.journals/famlq39 and id is 319 raw text is: Custody and Separated Families:
The Example of French Law
I. Introduction
French law governing relationships between parents and children is
built on an institution: parental authority. Heir to the old patria potestas
of ancient times, parental authority1 is defined today as a function, i.e., a
set of rights and correlative duties, in which each acknowledged right of
the father and mother is, at the same time, a duty imposed upon them.
According to the French Civil Code, this function belongs to the father and
mother.2 Parents have a primary, natural vocation to ensure the protection
and upbringing of the child, a vocation prior to that of the community.
Parents are vested with a mission: to protect the child's security, health
and morality, and to ensure its education and enable its development,
with the respect due to the child's person.3 All the parents' prerogatives4
must be exercised in view of a single purpose: the best interests of the child.
Parental authority belongs to the father and mother as parents. Once
* Professor at Universit6 Jean Moulin Lyon 3 Director of the Family Law Centre (Lyon).
1. By retaining the term parental authority, French law has stayed on the sidelines of
European rules, which advocate replacing terms of power and authority by the expression
parental responsibility. It seemed to French lawmakers, however, that the term authority
better conveyed the indissociable nature of the rights and duties that belong to parents. To
empower parents, it is not enough to emphasise their responsibility; it is also necessary to insist
on the powers they possess to accomplish their parental mission-they have responsibility
because they have authority. In the same spirit, legislators left unchanged article 371 of the Civil
Code, which introduces the rules of parental authority with a principle inherited from the Ten
Commandments the child, at any age, must honour his or her father and mother.
2. C. civ. art. 371-1 § 2 (Fr.).
3. C. civ. art. 371-1 (Fr.).
4. Since the reform of 4 March 2004, the Civil Code no longer mentions these prerogatives:
henceforth, parental authority is defined by its ends and not by its means. But it is accepted that
parents have, as in the past, rights (and duties) of custody, education and supervision.

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