Challenges of legal regulation of rights and obligations between children and their parents in Lithuania

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Challenges of legal regulation of rights and obligations between children and their parents in Lithuania

Dalia Perkumiene

Sigita Ovcinikovien

Vytautas Labanauskas

Abstract

The relevance of research. The relationship between parents and children is critical to the formation of a child's personality, life choices, and overall behavior. These relationships help maintain security, provide for people, i.e., y. raising children who subsequently contribute to the well-being of society, both socially and economically and in other ways. For this reason, special attention is paid to the legal regulation of relations between parents and children, ensuring legal intervention in state relations in case of child abuse or abandonment, as well as in cases where children abuse their rights and obligations, for example, when children do not fulfill their obligations to support incapacitated and able to support parents. The main problem. The problem of research is rather narrowly developed in jurisprudence, and research is more focused on the parental responsibilities of their children and the implementation of these rights, while very little research attention is paid to the protection of parental rights and the implementation of children's obligations to their parents. This was determined and the purpose of this work is to identify the main problems of legal regulation and the implementation of the rights and obligations of children and parents based on the family legal mechanism. The paper concludes that when exercising the rights and obligations between children and parents, such regulatory issues arise as the provision and maintenance of funds for the maintenance of minor children, the refusal of children from the maintenance of parents in need of maintenance, the assessment of the child's opinion in determining the place of residence of the child, Affairs. The problem of research is rather narrowly developed in jurisprudence, and research is more focused on the parental responsibilities of their children and the implementation of these rights, while very little research attention is paid to the protection of parental rights and the implementation of children's obligations to their parents. topic. The methodology used included document analysis, meta-analysis, comparative, and logical-analytical methods.

Keywords: children, parents, relations between parents and children, rights, and obligations.

Introduction Relevance of the topic

LR CK 3.192 str. 1 d. provides that “parents must provide material support for their minor children”, but the high number of maintenance cases shows that ensuring the material support of children is a pressing issue (Civil Code of the Republic of Lithuania (No. Vni-1864 of 17 July 2000), 2021). 2020 alone in the courts of first instance, 3429 cases related to the maintenance of minor children were received; in 2019 this number amounted to 5,317 cases, and in 2018-5510 cases (Lithuanian courts. Statistics. Internet access, 2021). Such an abundance of cases does not indicate that maintenance was not provided before the date of the application to the court, the purpose of the application is to establish legal certainty and to reach a consensus on the maintenance of the child (Lithuanian courts. Statistics. Internet access, 2021). The described situation shows that the mutual rights and obligations of children and parents established in the law are not observed in all cases, in this case one of the basic rights of a child is violated, thanks to which the child's normal development is ensured.

Statement of the problem

rights obligations children parents lithuania

Problems arise in ensuring the maintenance of minor children and in determining the amount of maintenance. Although the legislature clearly defines the obligation of parents to maintain their minor children, in the case of divorce, quite often one parent avoids the performance of his or her duty, thus leaving the entire burden of maintaining the child to the other of his or her former spouse. Problems in children's duty to maintain their parents in need of support arise from the provision of material maintenance for their incapacitated and in-need parents. In this situation, the question arises as to the absoluteness of this duty.

The imposition of an obligation on children to provide support to their parents before their death violates the principles of equality, justice, reasonableness, and proportionality, as the resulting burden is not equivalent to the obligation of parents to maintain children until adulthood and, in some cases, up to 24 years. In this situation, there is a lack of clarity as to when children are required to provide maintenance to their parents and whether this obligation is absolute. Problematic situations also arise due to the assessment of the opinion expressed by the child, when the court decides on the issue of determining the child's place of residence. The courts, having assessed all the circumstances of the case, seek to reach a decision that fully satisfies the best interests of the child, but the question arises as to whether the decision is in the best interests of the child in all cases.

Object of the research - Family legal relations, which define the implementation of the rights and responsibilities between children and parents.

The aim of the research - To reveal the main problems of legal regulation and application of the rights and responsibilities of children and parents based on the family legal mechanism.

The novelty of research

The research problem is rather narrowly developed in jurisprudence, and the research focuses more on the parental responsibilities of their children and the implementation of these rights, while the protection ofparental rights and the implementation of children's responsibilities to parents pays very little attention to research. theme.

Results

1. The concept of legal relations between children and parents

The concept of a legal relationship is an abbreviated way of saying that two or more persons are bound by an act, event, or transaction (Iacovino, 2006). It should be noted that legal relationships such as “social connections between people can occur when individuals express such a will, e.g., after the chosen type of transaction, or may be objective, i.e., y. determined by law. There are two concepts of legal relations in legal theory:

* “that it is a public relations regulated by legal norms;

* that it is a legal form of public relations” (Vansevicius, 2000).

One of the theorists who supports the first concept is A. Vaisvila, who explains that when interpreting the concept of legal relations, “these relations are regulated by legal norms and therefore socialized, the participants of which are bound by a binding balance of mutual rights and obligations, protected by the State' (Vaisvila, 2000). A.P. Ciocys also agrees with the first concept, who considers as legal relations “public relations regulated by legal norms, the participants of which have mutual subjective rights and legal obligations guaranteed by the state” (Ciocys, 2002). Noor u Deen states that a legal relationship is a legal relationship between two or more legal entities which may require each other to comply with certain conditions laid down or agreed upon by law. According to him, a legal relationship can also be seen as a legal correlate of social relations, that is, a legal regulation that controls legal entities and gives them a legal existence (Noor u Deen, Ah., 2021, May 24).

Although two types ofthe concept oflegal relations can be distinguished, it can be generally said that legal relations include public relations. Clearly, not all public relations can be considered legal relationships. For a public relationship to be considered a legal relationship, it must meet certain characteristics. The main elements of a legal relationship are the subjects, the object, and the content. This structure applies to any type of legal relationship - commercial, civil, tax, administrative, employment, family, etc. species. Some elements of a legal relationship can be described by a number of significant criteria, the fulfillment of which becomes a key factor in the relevant interaction of the legal relationship (What are the elements of legal relationship? The main elements of legal relations Internet access, 2020).

The object of legal relations includes the subjective rights and legal obligations of subjects. A subjective right of a person means that certain rights as a participant in a legal relationship belong to a certain subject. It is “a means of conduct which is legally possible, and which enables the subject to pursue his own interests, to enjoy [...] social goods”. As far as legal obligations are concerned, this is mandatory, the behavior of the participant in the legal relationship, which is determined by the applicable legal norms. If subjective rights can be waived, then no legal obligation can be waived. A legal obligation legalizes the subjective right of a particular person - “[...] it is the obligatory conduct of a participant in a legal relationship in order to exercise the rights of another party to the legal relationship and, on that basis, to legalize one's right in society” (Ciocys, 2002).

Parent-child relationship - the legal relationship between a child and the child's parents. This concept includes the mother-child relationship and the father- child relationship. The legal relationship between children and parents is of great importance to society as it helps to ensure the safety of those belonging to these two groups. For this reason, special legal attention is paid to the relationship between parents and children.

A child-parent relationship is a parent-child relationship that is recognized by law and confers certain rights and privileges and imposes certain obligations. The term applies equally to each child and to each parent, regardless of the marital status of the child's parents. The rights, responsibilities and privileges recognized in the relationship between parents and children include those maintained by both parents and guardians (Parent-child Relationship. Internet access, 2022).

The law does not provide a definition of the legal relationship between children and parents, but given that parents and children are related, in this case their relationship is defined by the definition of family legal relationship. I. Kudinaviciute - Michailoviene and G. Sagatys (2012) point out that this type of legal relationship is one that “[...] occurs between family members and other persons who are related by kinship or other ties. The basis for the establishment of a family legal relationship is the legal facts (Kudinaviciute - Michailoviene, & Sagatys, 2012).

In summary, it can be stated that the legal relationship between children and parents is a specific type of legal relationship that regulates only between certain entities, i. y. relationships between parents and children. The legal relationship between parents and children arises from the moment the child is born. It is from this point on those parents acquire rights and responsibilities vis-a-vis their children, which continue until their children reach the age of majority or their emancipation. Children, as legal entities, do not have full legal personality and are therefore the responsibility of their parents.

2. Basic parental rights and responsibilities for their children

Parental responsibility is a legal term that describes the rights and responsibilities that parents have to their children. Having rights and responsibilities for their children means that parents are responsible for the care of their children, as well as for their protection and upkeep. It also means that parents are responsible for choosing the school where their children attend, for appropriate treatment, naming the child and disciplining the child (Parental Responsibility: What does it mean and who is entitled to it? Internet access, 2022). Parental rights and responsibilities arise from the birth of a child and end automatically when the child reaches the age of 18 or in a marriage (in foreign countries where the partnership is legal - in a registered partnership, such as Denmark). Given that parents exercise their rights and responsibilities to children from birth to adulthood, i. y. at a time when children are most susceptible to environmental factors, we can consider parents to be the most important force in a child's development.

In many cases, the child's biological parents have parental rights and responsibilities under national law, so parenting and related parental rights and responsibilities for children were originally associated with a married couple, usually a husband and woman who are the biological mother and father of the child (Family and Parenting Institute, 2007). Mothers who give birth to children automatically have parental rights and responsibilities for their children. Parents also automatically assume parental responsibility if they are married to the mother at birth or if they are named as the father on the birth certificate. In cases where a person is the father of a child but is unmarried to the mother or is not listed as the father on the birth certificate, it means that such person does not assume parental rights and responsibilities towards his or her children (Amarachi Oti-Onyema, 2020).

However, sometimes the court may take over the responsibility for deciding who should look after the child, such as children who go to live in foster care, foster care or adoption (Rights of Women, 2014). Australian family law refers to biological parents, adoptive parents, people who become parents because of artificial insemination or surrogacy, and those who qualify for paternity (Australian Family Law Act No. 98, 2020). Article 11 of the Danish Parental Authority and Communication Act it is established that parental authority may be transferred to more than one parent (e.g., a stepfather) or to two non¬parents (this must be a married couple), but that no more than two persons may be the holders of parental authority at the same time (Lund-Andersen, I., GyldenLove Jeppesen de Boer, Ch., 2017).

Parental responsibility, which is expressed through the exercise of rights and responsibilities in the upbringing of their children, is not only a moral but also a legal duty. Internationally, the UN Convention on the Rights of the Child enshrines the “principle of parental responsibility for the upbringing and development of the child”, which means that parental authority empowers parents to make decisions that affect the well-being of their children (United Nations Convention on the Rights of the Child (20 November 1989), 1989). At the national level, this principle is enshrined both in the Constitution of the Republic of Lithuania and in the CC of the Republic of Lithuania. Art^le 38 of the Constitution of the Republic of Lithuania 6 d. “the right and duty of parents to educate their children as honest people and loyal citizens (Constitution of the Republic of Lithuania (No. 220-0 of 30 November, 1992), to maintain them until the age of majority” was established, and Article 3.155 of the CC of the Republic of Lithuania (Civil Code of the Republic of Lithuania (No. УШ-1864 of 17 July 2000), 2022) it is regulated that parents must take care of their children until they reach the age of majority (or emancipation). The power given to parents is characterized by the consolidation of the power available to parents [20].

Parental authority can be broadly defined as a legal term referring to the rights and responsibilities of parents to their children. Thus, the concept of parental authority gives parents the right of priority over other persons to make free decisions regarding the upbringing and well-being of their children. In general, parental authority is all the rights and responsibilities that apply to both the child and his or her property (Parental Responsibility - Child Custody and Contact Rights, 2022). As Moyo (2015) points out, parental rights and responsibilities mean everything: to grow, develop, maintain, secure, the environment in which they live, the school in which they will study, and so on (Moyo, A., 2014). Regarding parental rights and responsibilities for their children, Henricson (2008) identifies six essential rights and responsibilities: 1. Ensure that the child receives a proper education. 2. Ensure that the child is physically protected, adequately protected from danger, and avoided from harm.

3. Meeting the child's physical needs. 4. Meeting the child's emotional needs. 5. Promoting the child's social behavior and performing this task in a humane and non-abusive manner. 6. Respect for the child's individuality and the right to participate in decision¬making (Henricson, 2008). These parental rights and responsibilities are designed to protect and ensure the rights of children. Parents must know their rights and fulfill their responsibilities for their children, as parents' treatment of children shapes their children's quality of life, future, character and world perspective (Kiral, 2019).

Australian family law sets out not only parental responsibilities for their children, but also the rights that parents have over their children. The law allows parents to raise their children according to their values and beliefs. Parents are not prevented from making decisions regarding religion, education, discipline, treatment, and the child 's place of residence, unless there are serious grounds for endangering the child's well - being, e.g., if there is abuse, if the child does not receive education or the necessary medical treatment (Your duties and rights as a parent. Internet access, 2022).

Thus, it can be argued that parental rights and responsibilities for their children arise from their birth and continue until their adulthood or emancipation. It should be noted that in the presence of certain conditions, the obligation to maintain their children continues even in cases where the children have already reached the age of majority. Parental rights and responsibilities for children are a way of exercising parental authority, which is manifested in the upbringing of children, taking care of their health, moral or religious education, enabling them to grow, improve and develop, to sustain them materially. The content of parental rights and responsibilities for their children is binding on parents in their entirety. Parents cannot waive the exercise of any right or obligation, but it is their own right to exercise all rights and obligations in the best interests of the child.

3. Children 's rights and responsibilities to their parents

The definition of the term child is important for defining the legal status of a child. The term is derived from the Latin word infants, which means “one who does not speak”. For the Romans, the term child meant a child from birth to 7 years of age. This concept has changed a lot over the centuries and with different cultures to finally be attributed to man from birth to adulthood. However, this concept of the child was broad, and most ages varied in different cultures (Rights of the Child. Internet access, 2022).

It can be argued that a child has the right to exercise his or her rights and assume his or her responsibilities. This means that as a child grows, his or her right to self-determination increases, and so does the scope of responsibility. If the child is unable to exercise his or her rights, his or her parents or representatives do so. The best interests of the child must always be a point of reference. Because children are not always able to defend their rights and interests, they need the help and protection of adults. Children must be protected from mental and physical violence, injustice, negligence, abuse, sexual abuse and other threats. In addition, adults need to ensure that children have what they need to live and to create the right conditions for them to develop their skills and interests. The basis of a mutually respectful living environment is mutual respect. Children must respect adults (parents, grandparents, kindergarten and school educators, etc.), and other children, like adults, must respect children and other adults. Mutual respect and consideration of wishes is one of the important preconditions for the coexistence of society (Children's and youth rights and responsibilities, 2022).

Articles 29 and 42 of the UN Convention on the Rights of the Child. states that children have the right to be informed of their legal rights and that they must respect human rights. Such information will help children to become democratically informed citizens (United Nations Convention on the Rights of the Child (20 November 1989), 1995). Children who know about their rights tend to be more supportive of human rights issues and even volunteer in programs that promote other people's rights. Rights protect children from potentially harmful situations. Consequently, they should be trained at all levels to become common knowledge. Parties must educate children about their rights, and their parenting practices must be in line with the rights of the child. Thus, it can be said that children's rights and responsibilities are established at both the international and national levels.

The rights of the child include the rights and freedoms of all people, but due to the specific subjectivity and vulnerability of the child, children have additional rights that help them to develop and the right to protection from their vulnerability to exploitation and abuse. The rights of the child end where the rights of another child or adult begin. This means that rights have limits, and the child must consider the rights of other children and adults when exercising their rights. In addition to rights, children, like adult members of society, have responsibilities (Munongi, & Pillay, 2017). The responsibilities of the child include respect for the parents and all those around the child and the appropriate conduct of the child in public places. National laws also impose an obligation on adult children to respect, maintain and care for their parents in old age. In the exercise of the child's rights and responsibilities, the child's relationship with others must be based on respect for the rights of the other person, and the responsibilities associated with responsibility for actions and their consequences arise with the child's age and maturity (Covell, & McNeil, 2010).

In summary, the legal relationship between children and parents is a specific type of legal relationship that creates a legal relationship between these two entities. Parental rights and responsibilities for children are a way of exercising parental authority, which is manifested in the upbringing of children, taking care of their health, moral or religious education, enabling them to grow, improve and develop, and materially maintain them. The content of parental rights and responsibilities for their children is binding on parents in their entirety. Children's rights and responsibilities are enshrined at both international and national levels.

The rights of the child include the rights and freedoms of all people, but due to the specific subjectivity and vulnerability of the child, children have additional rights that help them to develop and the right to protection from their vulnerability to exploitation and abuse. The rights of the child end where the rights of another child or adult begin. In addition to rights, children, like adult members of society, have responsibilities. The responsibilities of the child include respect for the parents and all those around the child and the appropriate conduct of the child in public places. National laws also impose an obligation on adult children to respect, maintain and care for their parents in old age.

4. Analysis of foreign case law on the duty of children to support their parents

The obligation of children to maintain their parents in need of support also exists in foreign countries. Every adult child has a duty to provide support to his or her parent who has cared for or provided support to the child, as far as the child can do. In the case of parental support, the following criteria must be demonstrated: there is a real need for support; the child can provide support; the parent claiming maintenance has provided support to the child in the past.

The need for parental support can be identified through a simple cash flow analysis, but courts also take a contextual approach, e.g. In Godwin v Bolzso, the criterion of parental unemployment and inability to compete in the labor market was assessed. In Godwin v Bolzso, a 58-year-old mother sued her adult children for support (Bernt, 1996). Godwin used section 32 of the Ontario Family Law Act to go to court for support from his children. The above- mentioned article stipulates that an adult child must, as far as he or she is able, maintain the parent and / or mother who has cared for or maintained that child. In this context, the court found that for Godwin's request to be granted, three questions needed to be answered: did Godwin provide support to his children; did Godwin take care of them (Ontarijo case Godwin v. Bolcso, 1993); and does Godwin need financial support? It should be noted that this case is an important milestone in Canadian law, as it identifies three key issues that one parent must meet for support to be successful. In the present case, it was found that Bolzso's children were born and raised in the 1960s and 1970s. Their father, a butcher, abused alcohol, so their mother, Veronica Bolcso Godwin, was a housewife and the main caregiver in the family. All four children graduated from high school and left home to pursue a career or secondary education. The court ruled that the minimum financial and moral support given to Godwin's children was sufficient. When it comes to caring for children, Godwin's children have pointed out and complained about the level of maternal care.

They asserted that it had failed to protect them from their father's violent inclinations and from the sexual abuse of people close to them. Several children also stated that they were prone to depression and feelings of neglect because of their upbringing. Although it was recognized that the level of care provided by Godwin may not meet current standards of parenting, the court nevertheless found that Godwin met the standard of care required of parents in the 1960s and 1970s. It was therefore decided that Veronica Godwin had provided both care and support sufficient to comply with the law. In view of her financial needs, the court found that Ms. Godwin's age and lack of work experience would make it difficult for her to find work in the future. It was noted that Ms. Godwin's financial needs were partly because she was unable to gain work experience while raising children at home. As a result, the court ruled that the children must help the mother and ordered her to pay a $ 1,000 cumulative monthly allowance (Ontarijo case Godwin v. Bolcso, 1993).

In another case, Dragulin v Dragulin, where the applicant's 75-year-old father applied for maintenance from his daughter, who had recently won $ 1 million (Ontarijo case Dragulin v. Dragulin, 1998). The court upheld the applicant's maintenance claim. The court analyzed the applicant's proposed budget and set a maintenance allowance of $ 400 per month, based on the applicant's personal needs and a lack of retirement income of $ 1,000 per month. The applicant was not awarded the full amount claimed by him, as the amount of support granted by the applicant to his daughter had been considered (Baby Boomers, COVID-19 and the Obligations of Adult Children. Internet access:33, 2022). In the present case, the court also considered the plaintiff's tendency to spend recklessly, regardless of the future.

In the Stravino v Buttinell case, the issue of parental maintenance was assessed on the grounds that the parents were unable to work after the accident. 1991 July 15 the applicant was seriously injured when he was struck by a motor vehicle while walking in Rome. He suffered many injuries, including a closed head injury. In this case, the father of two children was ordered to pay $ 350 a month to support their father (Ontarijo case Stravino v. Buttinelli, 2018 ONSC 1041 (CanLII), 2022).

The actual need for maintenance is also an essential criterion when deciding on parental maintenance in European countries. In Germany, France, Italy, Luxembourg and the Netherlands, parents can go to court and claim maintenance from their children if they substantiate the actual need for maintenance and their own needs (Dutch Civil Code. Internet access, 2022).

In the proceedings concerning the award of maintenance to parents in need, the Whitely v Brodie case, which lays down a general rule for recovering parents, i. y. 'That the maintenance order of the spouses should be exhausted before applying to the court for the award of maintenance from children. This creates a hierarchy in Ontario where the maintenance obligations of the spouses take precedence over parental support. In determining the means of an adult child, the Court will satisfy itself that the child is fulfilling the maintenance obligations of his or her spouse and child before deciding to maintain his or her parents (Ontarijo case Whitely v Brodie, 199 WL1707851, 1994).

In summary, it can be said that there is a con¬siderable number of disputes in the courts regarding the implementation of the rights and obligations between children and parents. Disputes related to the exercise of non-pecuniary parental rights and responsibilities for children usually involve the determination of the child's place of residence and communication with the minor child. The opinion of the child is important both in deciding on the child's place of residence and in the procedure for communicating with one of the parents, but it is not decisive. The court does not take the child's opinion into account in cases where the child's wishes are contrary to his or her interests. Providing child support, another type of dispute that relates to the exercise of parental property rights and responsibilities for children. The courts decide on the method and amount of maintenance. Disputes are most often encountered in the courts, where one party seeks to award maintenance significantly higher than the child's actual needs. There are also frequent cases when the father and mother with whom the child lives live in a foreign country and therefore seek to order maintenance in the amount corresponding to the amount of maintenance provided to the child but taking the child abroad to live is not a sufficient basis to transfer the maintenance costs to the rest of Lithuania. father or mother. The case law has shown that maintenance is not awarded more than the parents' financial situation. There are frequent cases where the defendant deliberately worsens his financial and property situation to obtain a lower maintenance award.

Conclusions

1. The implementation ofthe rights and obligations between children and parents encounters such regulatory problems as the provision of maintenance for minor children and the determination ofthe amount of maintenance, failure to fulfill the obligation to maintain the parents and assessment of the child's opinion detection cases.

2. The legal relationship between children and parents is a specific type of legal relationship. The content of parental rights and responsibilities for their children is implemented through parental authority by educating children, taking care of their health, moral or religious education, enabling them to grow, improve and develop, and materially maintain them. The rights of the child include the rights and freedoms of all people, but because of the child's specific subjectivity, they have additional rights that help them to develop and the right to protection from their vulnerability to exploitation and abuse. The responsibilities of the child include respect for the parents and all those around the child and the appropriate conduct of the child in public places.

3. An analysis of the case-law has shown that problems with the exercise or non-performance of rights and obligations between children and parents are often due to the determination ofthe child's place of residence and communication with children, in the family. Most disputes arise over the provision of maintenance for minor children, where one party seeks to pay significantly more maintenance than the child's actual needs. There are cases where the defendant purposefully worsens his financial and property situation to award a lower maintenance amount.

In both national and international cases, there are disputes over the award of parental support to adult children. There is a tendency for parents to abuse their right to claim maintenance from their adult children, even though they have evaded the rights and responsibilities of their children. The imposition of the obligation of children to maintain their parents in need of support until death is contrary to the principles of equality, justice, proportionality, and reasonableness, as the burden imposed is not equivalent to the parental responsibilities of children before adulthood.

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