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Popular\u00a0initiatives<\/a>\u00a0in favor of shared residence have multiplied in recent years, on the Internet and in the public space, carried by associations which pride themselves on relying on scientific arguments supposed to demonstrate that this mode of residence would be the miracle solution. against juvenile delinquency, school failure, child abuse and even the emancipation of women.<\/p>\n Remember that in the event of separation and divorce of the parents, two configurations are possible for the custody of the child.\u00a0His main residence can be fixed with one of the parents (the other parent generally benefits from a right of visit and classic accommodation, extended or reduced).\u00a0But, since 2002, it is also possible to choose to establish shared residence: the child will reside alternately, equally, in the home of each parent (usually one week out of two).\u00a0In 2020, in France,\u00a012% of children<\/a>\u00a0whose parents are separated live in alternating residence, i.e. 480,000 children.\u00a0This rate is constantly increasing, especially until the child is 10 years old.<\/p>\n The arguments put forward by the associations in favor of shared residence are found in the bills that have been tabled, in particular the latest\u00a0proposal<\/a> to make shared residence the default mode of residence.\u00a0According to this proposal, \u201c85% of prisoners were brought up without one of their parents;\u00a090% of the homeless have never known a parent and 63% of suicidal minors have lived a single-parent childhood\u201d.\u00a0It reads that “24% of children in single-parent families have repeated a year against 9% in shared residence (14% in united families) and that there are” 11 times more acts of violence among children brought up in the absence of one of the two parents.<\/p>\n However, it is not because 85% of prisoners were raised by a single parent (statistic whose source remains untraceable) that 85% of children growing up in a single-parent family will become delinquents.\u00a0Moreover, the correlation between violence, juvenile delinquency and single parenthood is strongly\u00a0contested in the scientific literature<\/a>\u00a0, especially since this family configuration is very often temporary.\u00a0On the contrary, it is more relevant to indicate that,\u00a0according to INSEE<\/a>\u00a0, the parents of children in shared residence are more qualified and are more often managers or intermediate professions.\u00a0However, according to the\u00a0Ministry of Higher Education<\/a>, the children of executive parents are more likely (88% in 2020) to have a high school diploma and to undertake higher education studies.<\/p>\n In reality, the school success rate of children in shared residence would result more from the good level of education of the parents than from the type of residence.\u00a0The idea that shared residence would promote academic success and would be more favorable to the child has therefore not been demonstrated.<\/p>\n The absence of alternating residence does not imply that the child does not maintain\u00a0links with the other parent<\/a>\u00a0who, in the majority of cases, continues to benefit from a right of access and accommodation.\u00a0In 2012, according to\u00a0Infostat Justice<\/a>\u00a0, the share of children no longer seeing the other parent following a separation or divorce was only 4%.\u00a0Remember that since March 4, 2002, the separation of parents has had no effect on the exercise of parental authority, which is joint\u00a0in almost all cases (more than 90%)<\/a>\u00a0.<\/p>\n Article 373-2<\/a>\u00a0of the Civil Code, introduced by Law No. 2002-305 of March 4, 2002, requires each holder of parental authority to respect the child’s ties with the other parent.\u00a0This is now one of the criteria used by the family court judge to make decisions relating to the exercise of parental authority.\u00a0Parental\u00a0equality<\/a>\u00a0is not a simple law: it is an essential principle of French law.<\/p>\n The assertion that magistrates and magistrates systematically favor the main residence of the child with the mother is also unjustified.\u00a0In reality,\u00a0more than 80% of the decisions rendered by family court judges<\/a>\u00a0on the residence of the children result from an agreement between the parties who mainly wish to establish a principal residence with the mother.<\/p>\n There are few conflicting divorces and separations over children and, in fact, few fathers seek alternating or principal residence.\u00a0Mothers are therefore not favored to the detriment of fathers.\u00a0In the event of disagreement, the availability, the distance between the two homes, the age of the child, the reception capacity, the practice put in place by the parents before the judgment, the parent’s ability to respect the rights of the other parent, the existence of criminal proceedings for violence, are objective criteria on which the judge relies in order not to order shared residence.<\/p>\n Although the Parliamentary Assembly of the Council of Europe has issued a clear recommendation in favor of shared custody (\u00a0Resolution 2079, art. 5, al. 5<\/a>\u00a0), joint parental authority as of right, just like shared residence are absent from the International Convention on the Rights of the Child (\u00a0CIDE<\/a>\u00a0).<\/p>\n Admittedly, according to paragraph 3 of Article 9 of this convention, the child benefits from the fundamental right to continue to maintain “personal relations and direct contacts” with each of his parents after their separation, unless this is contrary to his interest.\u00a0This right is correlated with the duties of the father and the mother who \u201chave a common responsibility for bringing up a child and ensuring its development\u201d (CIDE, art. 18).<\/p>\n In no way does the CRC suggest that the child should have the right to spend equal time with each parent or even that parental authority should be shared.\u00a0It is not established with certainty that joint parental authority would be in the interest of the child when his parents are divorced or separated.\u00a0Studies<\/a>\u00a0show that\u00a0joint parental authority<\/a>\u00a0after a divorce or separation\u00a0can have negative effects on the child<\/a>\u00a0.\u00a0Not only would imposing shared residence not end the parental conflict, it could increase the child’s emotional stress and lead to communication difficulties.<\/p>\n Remember that several European states such as\u00a0Norway<\/a>\u00a0and\u00a0Sweden<\/a>\u00a0, regularly cited as being models for the application of shared residence, still reject the principle of\u00a0joint parental authority<\/a>\u00a0for unmarried couples.\u00a0In\u00a0Denmark<\/a>\u00a0, since 2012 shared residence is no longer ordered automatically after a divorce.\u00a0In 2017, the\u00a0Swiss Federal Council<\/a>\u00a0, which relied on the results of an interdisciplinary study conducted by the University of Geneva, did not wish to make shared residence \u201cthe priority care model\u201d: indeed;<\/p>\n \u201calternate custody is not only demanding in terms of parental interaction, but also depends on certain material (increase in costs) and structural (labour market, extra-familial childcare facilities, family policy) conditions that t is not always easy to bring together.\u00a0In addition, it can be very heavy for the child because of the frequent changes from one place of life to another.\u00a0\u00bb<\/p><\/blockquote>\n The best interests of the child must motivate the judge’s decision.\u00a0But the notion of the child’s interest is above all\u00a0\u201ca principle of interpretation\u201d<\/a>\u00a0,\u00a0\u201ca box where everyone puts what they want to find\u201d<\/a>\u00a0, which in its very essence requires the greatest vigilance.\u00a0Do we want to prioritize the interests of the parents or the interests of the children?\u00a0The idea that it is in every child’s best interest to share their time equally with their father and mother may just be an adult projection.\u00a0For, as the CRC rightly points out, the essential for the development of the child is to \u201cgrow up in the family environment, in a climate of happiness, love and understanding\u201d.<\/p>\nThe principal residence, a choice of the parties<\/strong><\/h4>\n
The issue of children’s rights<\/strong><\/h4>\n