In the judgment in question (Athens Single-Member Court of First Instance (Interim Measures) 2511/2023), the Court holds that the aforementioned evidence cannot support the mother’s pleas for amendment of the judgment, in the sense of a change of circumstances which the Court had assessed when it assigned joint custody of the parties’ minor daughter to both of them. In particular, it was not made probable that the “specific articulation disorder” presented by the minor daughter could be attributed to the regime of joint custody exercised by both parties. Furthermore, the email exchanges between the parties produced by the mother, concerning her communication with the father on various individual custody matters relating to the minor, cannot be construed by the Court as resulting from the father’s defective exercise of joint custody, but rather from the mother’s lack of effort and contribution, at intervals, towards the effective implementation of the joint custody regime, through her unwavering cooperation with the father and the relevant guidance of their minor daughter — Application dismissed.
In detail:
The applicant invokes, by means of the application under consideration, that as from 2/8/2022 a substantial change occurred in the circumstances under which judgment No. 5493/2022 of this Court was issued, with the consequence that amendment of the said judgment becomes imperative, and in particular that: (a) the respondent is indifferent to the fact that they are both unable to jointly exercise custody of their minor daughter without disagreements, since in every contact between them the respondent accuses her of creating fears in the child, who voices complaints about the respondent after the end of each period of joint custody exercised with him, as well as that the respondent is attempting to replace her with his new wife, even demanding that the minor call the latter “mum”; and (b) the psychological state of their minor daughter has deteriorated, as she developed a nervous cough, with the respondent neither acquiescing to a medical diagnosis of the minor’s health problem, nor in general caring for the minor as he ought, and that the latter constantly complains that she misses the applicant, this adverse change in the minor’s behaviour being due to her residing in different homes, with different methods of upbringing and treatment, as she specifically alleges.
The applicant, in the present case, produces certificate with reference No. ./8-9-2022 from the Child Psychiatric Department of the Penteli Children’s General Hospital, according to which an evaluation of the minor was carried out (she having been accompanied by her parents) and where it was found that “this is a girl of good development, presenting difficulties of an emotional profile. A brief counselling intervention was made with the parents. A complete diagnostic evaluation of the child and systematic parental counselling was proposed, in order to strengthen them in their parental role, with the aim of the smooth psycho-emotional development of their child”.
The applicant also produced certificate with reference No. ./4-4-2023 of the Attica General Hospital “Sismanoglio-Amalia Fleming”, from which it appears that the parties’ minor daughter was examined at the Mental Health Community Centre for Children and Adolescents of Pallini, Attica, that meetings were held with the competent psychologist and competent social worker of the Hospital, and that it was found that the minor presents a “specific articulation disorder”, whereupon a special rehabilitative speech-therapy programme and systematic counselling of the parties as her parents was proposed, in order to create a climate of cooperation between them, so as to avoid the tension that has arisen due to their judicial dispute. In addition, the applicant produces a series of email messages with the respondent concerning the joint custody of their minor daughter, from which she alleges the difficulty of her communication with him is apparent, as well as medical examinations and prescriptions of the minor, due to health issues she faced during the period after joint custody was assigned to both parties.
However, on the basis of the aforementioned evidence, the Court holds that it cannot support the applicant’s pleas for amendment of judgment No. 5493/2022, in the sense of a change of the circumstances which the Court assessed when it assigned joint custody of the parties’ minor daughter to both of them. In particular, it was not made probable that the “specific articulation disorder” presented by the minor could be attributed to the regime of joint custody exercised by both parties, since in certificate No. ./4-4-2023 of the Attica General Hospital “Sismanoglio-Amalia Fleming” no specific correlation is made between the said condition and the joint custody regime, nor was anything of the sort made probable by any other piece of evidence in the case file. Likewise, certificate with reference No. ./8-9-2022 from the Child Psychiatric Department of the Penteli Children’s General Hospital does not attribute any dysfunction to the regime of joint custody of the parties’ minor daughter exercised by both her parties-parents, since they were recommended exclusively parental counselling, on account of the dissolution of their marriage and as is usually required, in accordance with the lessons of common experience, after the definitive break-up of cohabitation between spouses who have, at the relevant time, a child still of young age.
Further, the email exchanges between the parties produced by the applicant, concerning her communication with the respondent on various individual custody matters relating to the minor, cannot be construed by the Court as resulting from the respondent’s defective exercise of joint custody, but rather from the applicant’s lack of effort and contribution, at intervals, towards the effective implementation of the joint custody regime, through her unwavering cooperation with the respondent and the relevant guidance of her minor daughter, having regard further to the fact that the respondent produced other email exchanges, both with the kindergarten in Paiania, where his minor daughter is enrolled this school year, and with the applicant herself, from which his interest in the progress and health of his minor daughter is inferred — having either approached a paediatrician directly or having participated in the scheduled sessions at the Medico-Pedagogical Centre of Pallini and in the parental counselling with the competent child psychiatrist — as is also inferred his effort to resolve any behavioural or health issues that their minor daughter presents, at her present stage of life, through their joint handling with the applicant, without there appearing from the messages produced any cause of tension on his part in their mutual communication.
Furthermore, from the sworn deposition of the respondent’s witness in the courtroom of the Court, which is judged in its entirety to be clear and convincing, as well as from the affidavit of his witness ., the respondent’s koumbára (best friend at his wedding), who has lived at close quarters the paternal bond between the respondent and his minor daughter, it transpired that the respondent zealously attends to all the current and other matters relating to the joint custody of his daughter; both witnesses, who also have children of their own, referred to the minor’s birthday party on 2/12/2022, where both parties, together with their new partners, had presented, in the interest of the minor, a good image of mutual understanding, precisely because there was a common pursuit on their part to that end. The latter witness affirmed under oath in particular that “I was present during videocalls and telephone calls after the joint-custody decision and I personally observed the change, the great maturity, and the mutual respect of the parents, who now needed to cooperate, even though separated, for the benefit of their child”, while she further stated that the applicant “seeks to present a misleading situation” regarding the respondent and his new wife, as well as that she presents her minor daughter as a child “mentally unwell, when contact with her dad has functioned only therapeutically for her mental health”.
The above sworn deposition and affidavit of the respondent’s witnesses fully refute both the sworn deposition of the applicant’s witness in the courtroom of the Court (her sister) and the affidavits of her witnesses (her mother and fiancé), insofar as all of them referred indeed to the adverse personal state of the minor (the minor’s nervous cough, streptococcus for which she received antibiotics, the poor image of the minor when she returned to the applicant’s home after joint custody had been exercised by the respondent), due to the respondent’s inability to fulfil the duties arising from the joint custody of his child, but their depositions were not corroborated by other crucial evidence, particularly documentary, namely by medical certificates and reports of psycho-pedagogical assessment of the minor, originating from specialist scientists, as the only persons competent to give an opinion on the medical and general psychological state of the minor, in conjunction with the feelings she nurtures for the respondent father and the manner in which the latter exercises her joint custody.
It should be noted, moreover, that the respondent’s witness — his current wife — testified in the courtroom of the Court that the parties’ minor daughter enjoys spending time with the respondent and is happy with him (see also the photographs produced from the minor’s daily life), and has fully adjusted to the regime of her joint custody and feels warmth and security with him, but that it is the applicant who treats her manipulatively, causing the minor remorse and guilt at the sensitive age of 4 that she is going through, with the result that the minor becomes psychologically charged and internalises the pressure she feels. The same witness refuted individual complaints of the applicant on day-to-day matters of the respondent’s exercise of joint custody, such as that the latter decided to cut the child’s hair in her sleep and against her will, or that he failed to attend to medical care, as the minor required.
In particular, she testified that the respondent has promptly taken all necessary action whenever his daughter has been ill, with a view to her care and welfare, without being indifferent to her, while it was not made probable that the respondent is attempting to substitute his new wife for the applicant in the maternal role. Finally, it was not made probable that the respondent exercises the joint custody assigned to him in a manner aimed at the psychological burdening of his minor daughter, or that he turns her against the applicant, that is, in a manner whereby, during the periods of the minor’s alternating residence at his place of residence, he acts contrary to the interest of the minor, in an anti-pedagogical manner, charging and burdening her psychologically, with the result that the minor does not wish to reside with him.
It is pointed out that the joint custody of the parties’ minor daughter, as is also stated in the judgment under amendment, presupposes precisely the mutual willingness of the parents to cooperate and set aside the reasons that led to the break-up of their cohabitation, and chiefly to manage, through joint effort, to communicate harmoniously between themselves, so as to take their decisions on her joint custody under a regime of cooperation and shared understanding for her interest — an approach which was made probable as being followed up to the present day by the respondent, the applicant’s contrary allegations being rejected as substantively unfounded.
Inasmuch, therefore, as no new factual circumstances were made probable, in the sense that the circumstances on which judgment No. 5493/2022 of this Court was based — the judgment which assigned joint custody of the parties’ minor daughter to both of them, under the system of alternating residence — were not changed, the application under consideration must be dismissed as substantively unfounded. Lastly, the respondent’s court costs must be imposed, upon his request and without itemised list, against the applicant, on account of her loss in the proceedings (Article 176 of the Code of Civil Procedure (KPolD)).
FOR THESE REASONS
ADJUDICATES with the parties present.
DISMISSES the application.
IMPOSES against the applicant the respondent’s court costs, which it sets at the sum of three hundred and fifty (350.00) euros.
JUDGED, decided and published in Athens, in extraordinary public sitting in its courtroom, without the presence of the parties or their attorneys, on 24 April 2023.
THE JUDGE THE CLERK
- See also article Revocation of Interim Measures Decision
- See also article Interim Measures for Real Estate
- See also article Interim Measures for Possession
- See also article Interim Measures in Family Disputes
- See also article Interim Measures — Harassment and Fake Instagram/Facebook Accounts
- See also article Interim Measures against Facebook/Twitter/Instagram
- See also article on Interim Measures — Relocation of Family Home
- See also article on Interim Measures — Joint Custody of a Child
- See also article on Interim Measures — Custody and Child Abduction
- See also article on Interim Measures — Change of City for Minor Children
FREQUENTLY ASKED QUESTIONS ON REVOCATION OF INTERIM MEASURES IN JOINT CUSTODY
1. When can I seek amendment of a joint-custody decision?
Amendment of an interim-measures decision that has assigned joint custody presupposes a substantial change in the factual circumstances which the court took into account when issuing the original decision. Vague complaints about communication difficulties or simple disagreements on day-to-day upbringing matters are not enough. Specific new facts must be made probable, such as indifference of the other parent, demonstrable psychological burdening of the child causally linked to the joint-custody regime, or serious defective exercise of parental duties. The decision under examination dismissed the application precisely because this causal link between the child’s difficulties and the manner of exercise of joint custody was not established.
2. How do I prove that the other parent is indifferent to the child?
Witness testimony from relatives is not enough on its own, especially when refuted by documentary evidence. Objective means of proof are required: medical certificates and reports of psycho-pedagogical assessment from specialist scientists explicitly correlating the child’s condition with the parent’s conduct. Likewise, email exchanges, certificates from the school or kindergarten attesting to the parent’s non-participation, evidence of non-payment of health or educational expenses. It is important that the evidence record sustained indifference and not isolated incidents of disagreement, which fall within the natural tensions following the break-up of cohabitation.
3. Do the child’s psychological problems lead to a change in joint custody?
The mere existence of a psychological or developmental issue is not enough. The court requires that it be made probable that the specific disorder is due to the joint-custody regime or to the manner in which one parent exercises it. In practice, child-psychiatric certificates usually state generally that parental counselling is needed after divorce, without attributing dysfunction to a specific parent. When this specific correlation is missing, the application for amendment is dismissed. A targeted psycho-pedagogical assessment is required, clearly identifying the causal relationship between the problem and the parent’s conduct.
4. How long does the revocation or amendment procedure take?
The application for revocation or amendment of interim measures is filed before the Single-Member Court of First Instance that issued the original decision. The time for setting the hearing date depends on the court’s caseload, but typically ranges from two to six months. The hearing itself takes place on a single date and the judgment is usually issued within one to three months. If there is an urgent case, a temporary restraining order may be sought with quicker adjudication. It should be noted that during the waiting period the original decision remains in force and must be respected by both parents.
5. What documents do I need for an application for amendment?
Indispensable are the original decision that assigned joint custody, medical opinions and reports from a psychologist or child psychiatrist documenting specific harm to the child, email exchanges between the parents demonstrating the other’s conduct, certificates from educational institutions, receipts of expenses for the child, and affidavits from witnesses with personal knowledge of the child’s daily life. It is important that the witnesses not be only close relatives of one parent, since the court particularly values the depositions of third parties who have impartially observed the parent-child relationship.
6. How does a lawyer help in a case for amendment of joint custody?
The lawyer initially assesses whether the available evidence genuinely establishes a substantial change of circumstances or whether the matters complained of amount to ordinary adjustment difficulties insufficient to justify revocation. The lawyer guides the gathering of crucial evidence, particularly psycho-pedagogical reports from specialised scientists, and selects appropriate witnesses. The lawyer drafts the application focusing on the causal link between the other parent’s conduct and the child’s burdening. The lawyer represents the parent in the courtroom, examines witnesses, and refutes the opposing evidence. The lawyer also warns of the risk of court costs being imposed in the event of dismissal of the application, as occurred in the decision under examination.