The role of the Center for Social work in disputes for exercise of parental rights

Parental right is a set of powers that parents have in relation to the child, i.e., about the right and duty of parents to take care of the child, which includes custody, upbringing, education, representation of the child, child support and management and disposal of the child’s property.

Parents have the right and duty to take care of the child even after divorce. Thus, parents can agree on the way they will exercise parental rights, i.e., whether they will exercise it jointly or independently. In that case, the court decides on the parental right based on the agreement of the parents.

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    When does the Center for Social Work give a finding and opinion on exercising parental rights?

    If parents have not agreed about way of exercise of parental rights, and they have a minor child (children) together, the court is, according to the Family Law, obliged to obtain a finding and opinion from the competent Center for Social Work (hereinafter: “CSW”).

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    How does the Center for Social Work form a finding and opinion?

    In disputes over the exercise of parental rights, the court must make a decision that is in the best interests of the child. Therefore, the CSW must form the finding and opinion in accordance with the child’s best interest, i.e., the child’s interest is taken as a central criterion when assessing whether each of the parents is suitable to exercise parental rights.

    Thus, CSW considers all circumstances that affect the normal development of the child, such as the parent’s care for the child, the parent’s ability to recognize and meet the child’s needs, the child’s communication with the parent, the material status of the parents and the like.
    Also, CSW considers the age and gender of the child, his feelings, as well as his opinion, if the child is mature enough to form the same.

    CSW finding and opinion must be objective and based on reliable information, which CSW collects from conversations with parents and children, as well as through various tests, but also through cooperation with other bodies, such as educational and health institutions.

    The finding and opinion of the CSW must be objective even when the CSW is the plaintiff in a dispute for the exercise of parental rights, so in these situations the finding and opinion must not be made by the CSW who is plaintiff.

    Also, the CSW finding and opinion is based on current information, so if during the procedure the circumstances under which the CSW made the finding and opinion change, the CSW must make a new finding and opinion, in accordance with the new situation, and again in the best interest of the child.

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    Is the opinion of the Center for Social Work binding for the court?

    The finding and opinion of the CSW are only one of the pieces of evidence that the court can obtain in the procedure for exercising parental rights. Thus, the court decides considering the findings and opinion of the CSW, but also takes into account other evidence, such as hearing litigants, expertise, opinions of other competent institutions and the like, all depending on the circumstances of each case.

    Therefore, the court is not obliged to implement the finding and opinion of the CSW in the decision on exercising parental rights, i.e., the decision of the court on exercising parental rights and maintaining personal relations between parents and children does not have to be identical to the finding and opinion of CSW, especially bearing in that court must request a finding and opinion from the competent CSW before making a decision, but it is not obliged to agree with the same in any case.

    Of course, having in mind the significant role that CSW has in disputes for exercising parental rights, if the court decides contrary to the findings and opinion of CSW, court is obliged to explain such a decision, i.e., to indicate all the reasons why it considers that the opinion of CSW in this case, however, is not in the best interest of the child.

    Therefore, the CSW’s finding and opinion represent the CSW’s proposal on the way it is necessary to decide on the exercise of parental rights, i.e., the CSW should clarify and establish the facts that are important for deciding, while the decision itself is made by the court.

    Of course, as the finding and opinion of the CSW is only one of the evidences, the parties can comment on the finding and opinion, i.e., challenge it, while the court, in order to clarify doubts, can hear the representative of the CSW.

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    What happens if it is not possible to obtain a CSW’s finding and opinion?

    It often happens that one of the parents lives abroad, so it is not possible to organize his conversation with the CSW representative. However, in these situations, the court cannot give up on obtaining the findings and opinion of the CSW, but will, without delay, request a report from the relevant institution abroad, either diplomatically or directly, if there is a legal aid agreement between the Republic of Serbia and the foreign country where one of the parents lives.

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    How does CSW makes finding and opinion?

    When providing social protection services, social workers employed in CSW must work in accordance with principles prescribed by law, such as the principle of timeliness, efficiency, the principle of non-discrimination, etc.

    All the prescribed principles are in fact guidelines for the actions of social workers, so that principles must be respected by social workers while talking to the parties, which precedes the compilation of findings and opinions, as well as in procedure of making the finding and opinion.

    In practice, however, social workers often deviate from these guidelines. Thus, in the proceedings about exercising of parental rights, social workers generally favor mothers when talking to clients and when drafting the findings and opinions, i.e., they often give preference to mothers over fathers, especially if children are young. In certain situations, such behavior of CSW, which has become even a kind of practice, is unjustified and is not in accordance with the interests of the child.

    Of course, in a situation when the mother, for example, is addict and does not have funds to provide everything that the child needs, and the father has all the necessary parental qualities and is financially provided, it is clear that parental rights should be exercised by the father. However, when the situation is not so clear, CSW generally still acts in favor of the mother.

    It also happens that a social worker, after an interview with one parent, informs the other parent about how the interview went, even though it is confidential information.

    Finally, we point out that another problem is that it often happens that CSW sends the finding and opinion to the right before the hearing. This means that the parties do not have enough time to get acquainted with it, which is why the hearings are postponed, and thus the decision-making in family disputes is postponed, which are, by the nature of things, but also by law, urgent.

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