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ΠΑΡΑΒΙΑΣΗ ΑΠΟΦΑΣΗΣ ΕΠΙΚΟΙΝΩΝΙΑΣ

VIOLATION OF VISITATION RIGHTS AND PERSONAL DETENTION OF THE MOTHER

VIOLATION OF JUDGMENT ON VISITATION RIGHTS WITH MINOR CHILDREN – LAWSUIT FOR CONVICTION TO MONETARY PENALTY AND PERSONAL DETENTION – CONCEPT AND PRECONDITIONS – PROCEDURE AND STAGES – ELEMENTS THAT MUST BE INCLUDED IN THE LAWSUIT – LEGAL CONSEQUENCES. – It is established, in the Court’s judgment, that during the period of the meeting of the minor with the expert witness, where her positive interaction with the plaintiff father was recorded, and shortly before that (early November 2017), with sufficient time having elapsed since the incident of 7.9.2017, the defendant unjustifiably did not deliver the children to the plaintiff for the established visitation, without even providing any justification for her refusal, invoking the wish of her children not to meet him, while during this period there was no child psychiatric assessment confirming such refusal. The said period of 2.11.2017 – 23.11.2017, as set out, judgment no. 1270/2017 of the Piraeus Single-Member Court of First Instance, which had established the plaintiff’s visitation with his minor children, was in force, since it had not been revoked – Consequently, the defendant culpably failed to deliver the children for the established visitation on 2.11.2017, 4.11.2017, 9.11.2017, 16.11.2017, 18.11.2017 and 23.11.2017; however, this constitutes a single continuing course of conduct, so that a single penalty shall be imposed on her in order to prevent excessive sanctions against her and to facilitate the procedure and method of calculating the penalty – The court of first instance erred in ruling otherwise – (Articles 950, 947 of the Code of Civil Procedure (KPolD)).

THE PIRAEUS SINGLE-MEMBER COURT OF APPEALS

(Piraeus Single-Member Court of Appeals 57/2024)

In the present case, the lawsuit under consideration includes the necessary elements grounding the plaintiff’s claim, since it specifies the enforceable title and the provisions concerning the plaintiff’s right of visitation with the minor child, together with the threatened monetary penalty for each violation, the service of the enforceable title on the defendant with order to comply, and her negative conduct. The lawsuit is not rendered indefinite by the erroneous numerical calculation, namely the reference to violations of the judgment for 16 dates while the relief sought has been calculated for 17 occasions, since the monetary penalty and personal detention will be calculated for the dates referred to. Nor is the filing of a main lawsuit an element of this lawsuit, given that the interim measures judgment continues to produce its effects until it lapses, if the main lawsuit is ultimately not filed. Consequently, the court of first instance, which held the lawsuit to be definite, did not err and the first ground of appeal must be rejected as unfounded.

The parties, plaintiff …… and defendant ………, entered into a lawful religious marriage, according to the Eastern Orthodox doctrine, at the Holy Church of …….. of Nikaia Attica, on 7/7/2012, from which they had two minor children: ……, born on 16/1/2014, and …………, born on 4/2/2016. Their cohabitation as a married couple was permanently interrupted in April 2017. By virtue of judgment no. 1271/2017 of the Piraeus Single-Member Court of First Instance, in interim measures proceedings, custody of the minor children of the parties was provisionally awarded to the defendant mother ………… and the plaintiff’s right of visitation with his children was provisionally regulated as follows: (a) every Thursday from 17.00 to 21.00; (b) every second week, from 10.00 on Saturday to 20.00 on Sunday; (c) one week of the Christmas and Easter holidays alternately, and during the summer holidays in even years from 1 to 17 August and in odd years from 17 to 26 August. A monetary penalty of EUR 200.00 and personal detention of 10 days were threatened against the defendant for each instance of violation of the visitation provision of the judgment. The said judgment further set a 3-month period from its publication (25.7.2017) for the filing of the main lawsuit.

A copy of the executory copy of the said judgment with the order to enforce dated 28.7.2017 was served on the defendant on 28.7.2017 (see service report no. …./28.7.2017 of the bailiff at the Piraeus Court of First Instance ………). The plaintiff also filed, on 23.10.2017, his lawsuit dated 23.10.2017 with filing no. ……./2017 seeking regulation of visitation, which he served on the defendant on 24.10.2017 (……../24.10.2017 of the bailiff at the Piraeus Court of First Instance ……..), that is, within the said 3-month period. Subsequently, on 7.2.2018, he withdrew the pleading of the said lawsuit by an oral declaration of his attorney, which was recorded in the minutes (see minutes no. 77/2018 of the Piraeus Single-Member Court of First Instance); however, on the basis of what has been set out, this withdrawal does not have as a consequence the automatic cessation of the validity of the said interim measures judgment, but rather constitutes a ground for its revocation (Article 698 para. 1 subpara. d’ of the Code of Civil Procedure (KPolD)), while the plaintiff filed a new lawsuit on 21.5.2018 (filing no. ……./2018), on which judgment no. 3043/2019 of the Piraeus Single-Member Court of First Instance has been issued.

Furthermore, from the same evidence it was established that one of the reasons for the parties’ separation was the defendant’s suspicions that the plaintiff had displayed inappropriate sexual conduct towards their elder child ……, after she had observed redness on the minor’s genitals (vulva). The well-founded character of these suspicions was not deemed probable by the aforementioned judgment of the Piraeus Single-Member Court of First Instance, which established the said manner of visitation between the defendant and his children as set out above, allowing him to see his children, without the presence of third parties, once a week, every second weekend with overnight stay, and additionally during the Christmas and summer holidays for a continuous period (1 week and 17 days respectively).

Although she had not complied with the temporary restraining order, the defendant delivered the children to the plaintiff so that they could spend the summer holidays during the first ten days of August 2017. After the children’s return, the elder daughter …… developed pimples on her body, aggressive behaviour and sleep disturbances, while Dimitra presented diarrhoea and fever. This condition of theirs was attributed to a combination of factors, mainly the separation from their mother at a very young age for a long period and the separation of their parents, and not directly to any negative effect of the plaintiff (see in particular the certification dated 8.1.2018 of the clinical psychologist – child psychologist ………….). On 7.9.2017, the plaintiff again went to collect his children for the established visitation, but an incident occurred between the parties, since …… refused to go with her father, with the result that the plaintiff pulled her by force towards him, causing bodily harm to the defendant, his former spouse, who intervened (see the forensic medical report dated 8.9.2017 in which redness of the left arm and headache of the defendant were noted). After this incident, no visitation took place between the plaintiff and his children on the established dates from 9.9.2017 to 23.11.2017, and specifically on 9.9.2017, 21.9.2017 (14.9.2017 is not mentioned in the lawsuit), 23.9.2017, 28.9.2017, 5.10.2017, 7.10.2017, 12.10.2017, 19.10.2017, 21.10.2017, 26.10.2017, 2.11.2017, 4.11.2017, 9.11.2017, 16.11.2017, 18.11.2017 and 23.11.2017, while the plaintiff filed an equal number of criminal complaints against the defendant wife for violation of Article 232A of the then-applicable Penal Code (PK).

According to the report dated 27.11.2017 of the child psychologist – clinical psychologist ……, which was submitted by the plaintiff, after the violent incident between the parties in front of the children on 7.9.2017, the minor ……. (aged 3.5 years) presented anxiety, restlessness, insecurity, fear, anger and aggression, and refusal regarding contact with her father; from the psychological assessment of the said minor it appears that the paternal figure was clearly negatively imprinted in her psyche, since her father’s conduct (it is not clarified whether this concerns only her or also her mother) had caused her anxiety, fear and insecurity and inevitably burdened her emotional state. According to the same psychologist, at that stage visitation could not be carried out, since both children, and especially ……, consistently expressed refusal and unwillingness to communicate with the father.

However, the said psychologist did not take a position on whether the plaintiff had committed sexual abuse of his daughter, stating that, due to the child psychiatric expert opinion conducted by the appointed expert witness, she did not carry out a thorough examination of the child regarding her sexual abuse by the father.

However, on 9.11.2017 a meeting took place between the appointed (in the criminal case file) expert witness, child psychiatrist ………… of the Hellenic Centre for Mental Health and Research, and the minor …., in the presence of the parties, defendant and plaintiff (2 meetings had preceded, without the plaintiff), where the minor, although initially refusing to meet her father and being awkward, with the passage of time played with him showing complete trust, with a pleasant disposition and without turning to her mother for safety. The expert characterised this meeting as flowing, with trust, without fear, and not what would have been expected if the father had caused pain to the child. The same expert deemed unfounded the defendant’s denunciations regarding sexual harassment of …. by the plaintiff, stating that the redness in the genital area of the minor …. could be attributed to inadequate hygiene care or to masturbatory activity by the child.

From the foregoing it is apparent that initially there was indeed a refusal by the plaintiff’s children to communicate with him (and mainly by the elder ………., who had more articulate speech, since the younger …… was 1.5 years old), which was due also to the conduct of the plaintiff himself towards the defendant during the incident of 7.9.2017. However, this negative emotion did not exist in early November 2017, as also established by the appointed expert witness, whose findings are not contradicted by the report of the psychologist ……, who, while she referred to negative emotions of his children towards the plaintiff, did not specify the time of the meetings during which she observed them (i.e. whether they existed immediately after the incident of 7.9.2017 or also subsequently).

It is noted that the plaintiff regularly attended the defendant’s residence for the established visitation, but the latter refused to deliver the children and usually did not even respond to the door intercom (see entries in the incident logbook). Only on 14.9.2017 did she state to the police officers that the children did not wish to communicate with the plaintiff. It is also noteworthy that the defendant, while not implementing the said interim measures judgment, did not file an application for its revocation until 28.11.2017 (filing no. …../2017), where, by the temporary restraining order of 7.12.2017, without sexual abuse of the children being deemed probable, a manner of visitation was established every Tuesday, Wednesday and Thursday from 16.30 to 20.00 at the applicant’s residence, in the presence of the paternal grandfather and the maternal grandmother of the minors.

Judgment no. 286/2018 of the Piraeus Single-Member Court of First Instance moved in the same direction, amending judgment no. 1271/2017 of the same Court, by establishing a manner of visitation every Tuesday and Thursday between 17.00 and 20.30 and every first and third Sunday from 11.00 to 14.00 in the presence of the applicant’s mother and optionally his father. The plaintiff has by now been acquitted of all charges in relation to his minor daughter by judicial council order no. …../2020 of the Judicial Council of the Piraeus Naval Court, and by judgment no. 298/2021 of the Piraeus Court of Appeals joint custody between the parties has been established with alternating residence of the minor children.

From the foregoing it is established, in the Court’s judgment, that during the period of the meeting of the minor …… with the expert witness, where her positive interaction with the plaintiff father was recorded, and shortly before that (early November 2017), with sufficient time having elapsed since the incident of 7.9.2017, the defendant unjustifiably did not deliver the children to the plaintiff for the established visitation, without even providing any justification for her refusal, invoking the wish of her children not to meet him, while during this period there was no child psychiatric assessment confirming such refusal. The said period 2.11.2017 – 23.11.2017, as set out, judgment no. 1270/2017 of the Piraeus Single-Member Court of First Instance, which had established the plaintiff’s visitation with his minor children, was in force, since it had not been revoked.

Consequently, the defendant culpably failed to deliver the children for the established visitation on 2.11.2017, 4.11.2017, 9.11.2017, 16.11.2017, 18.11.2017 and 23.11.2017; however, this constitutes a single continuing course of conduct, so that a single penalty shall be imposed on her in order to prevent excessive sanctions against her and to facilitate the procedure and method of calculating the penalty. Taking into account the disputed period and the number of violations, the penalty must be set at the amount of EUR 600.00 and her personal detention for a period of 3 days.

The court of first instance, which by the appealed judgment accepted the plaintiff’s lawsuit in its entirety, erred, and consequently, upon acceptance of the remaining grounds of appeal (2nd – 4th), the appeal must be allowed as substantively well-founded. The appealed judgment must be set aside, the lawsuit must be retained by the present Court, it must be confirmed that the defendant intentionally violated judgment no. 1271/2017 of the Piraeus Single-Member Court of First Instance issued in interim measures proceedings, with respect to its provision on the plaintiff’s visitation with his children, for the period from 2.11.2017 to 23.11.2017, and she must be sentenced to a monetary penalty of EUR 600 and personal detention of 5 days. Because the appealed judgment is set aside, the return of the appeal filing fee to the appellant must be ordered (Article 495 of the Code of Civil Procedure (KPolD)).

Finally, the court costs of both instances of jurisdiction must be set off in their entirety between the parties due to their partial victory and defeat, and also due to reasonable doubt as to the outcome of the trial (Article 179 of the Code of Civil Procedure (KPolD)).

FOR THESE REASONS

JUDGES with both parties present.

ACCEPTS the appeal both formally and on the merits.

SETS ASIDE the appealed judgment no. 2282/2020 of the Piraeus Single-Member Court of First Instance.

ORDERS the return of the appeal filing fee to the appellant who deposited it.

RETAINS and adjudicates the lawsuit dated 24.1.2018 with filing no. ……./2018.

ACCEPTS it in part.

CONFIRMS that the defendant violated judgment no. 1271/2017 of the Piraeus Single-Member Court of First Instance issued in interim measures proceedings, with respect to its provision on the plaintiff’s visitation with his minor children, for the period from 2.11.2017 to 23.11.2017.

SENTENCES her to a monetary penalty of six hundred (600) EUR and personal detention of five (5) days’ duration.

SETS OFF the court costs between the parties.

JUDGED, decided and pronounced in extraordinary public session in its courtroom, in the absence of the parties and their attorneys, on 5.2.2024.

THE JUDGE THE CLERK

FREQUENTLY ASKED QUESTIONS ON VIOLATION OF VISITATION RIGHTS AND PERSONAL DETENTION OF THE MOTHER

1. What can I do if my children are not delivered to me for visitation?

Where there is a court judgment regulating visitation and the other parent refuses to deliver the children, the affected parent files a lawsuit on the basis of Articles 947 and 950 of the Code of Civil Procedure (KPolD), seeking conviction of the responsible party to a monetary penalty and personal detention for each violation. The precondition is that the enforceable judgment must have been served with an order to comply, and the culpable refusal of delivery must be proven. Where the refusal is repeated on consecutive established dates, the court may treat it as a single continuing course of conduct and impose one single penalty, thus avoiding excessive sanctions.

2. What penalties are provided against the parent who violates visitation rights?

Where the court establishes culpable violation of the judgment on visitation, it sentences the responsible parent to a monetary penalty in favour of the other and to personal detention. In the case under examination, the Piraeus Single-Member Court of Appeals imposed a monetary penalty of EUR 600 and personal detention of five days, treating six violations as a single continuing course of conduct. The amount of the penalty depends on the number of violations, their duration and the degree of culpability. The penalty initially threatened in the interim measures judgment (e.g. EUR 200 and 10 days per violation) operates as an upper limit, without absolutely binding the enforcement court.

3. How long does the lawsuit procedure for violation of visitation last?

The procedure follows that of family disputes before the Single-Member Court of First Instance and, as a rule, the hearing is scheduled within 10 to 18 months from filing, depending on the court’s docket. The judgment is usually issued 4 to 8 months after the hearing. Where any party files an appeal, adjudication before the Court of Appeals may add 1.5 to 2.5 years. Because the harm to the parent–child relationship is immediate, an application for interim measures or a temporary restraining order is examined in parallel with the lawsuit, as these are dealt with more quickly.

4. What evidence do I need to win the lawsuit?

The necessary evidence consists of the enforceable title (the judgment that regulated visitation with the threatened penalty), the service report of the executory copy with the order to comply, and proof of refusal of delivery for each specific date. Useful items include entries in police incident logbooks, bailiff reports, witnesses, messages and expert opinions. As shown in the case discussed, the psychiatric expert opinion that established positive parent–child interaction was decisive in rejecting the claim concerning the children’s refusal. Systematic recording of every fruitless attempt to collect the children significantly strengthens the case.

5. What are my chances if the other parent invokes the children’s refusal?

The mere invocation of the children’s wish not to meet the parent does not suffice as justification, where it is not supported by a child psychiatric assessment and where revocation of the judgment regulating visitation has not been sought. The courts assess this argument strictly, particularly where the parent who has custody undertakes no institutional action (application for revocation, child psychiatric assessment) and simply refuses delivery. Where it is established that the refusal is due to the parent’s stance and not to genuine psychological burden on the children, the prospects of the lawsuit succeeding are significant.

6. What is the role of the lawyer in this type of case?

The lawyer undertakes service of the enforceable title with the order to comply, the documentation of each violation through evidence, the drafting and filing of the lawsuit with correct calculation of the violations, and the judicial representation of the client. In parallel, they assess whether grounds exist for revocation or amendment of the original judgment, so as to ensure smooth visitation in the future. Our firm has handled cases of violation of visitation rights before Courts of First Instance and Courts of Appeals, with specialisation in the procedural strategy of Articles 947 and 950 of the Code of Civil Procedure (KPolD) and in the combined use of child psychiatric assessments.


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