Albania Cross-Border Disputes over Child Custody and Access Rights and the ECtHR Jurisprudence in the Case of Albania

Abstract

INTRODUCTION Albanian legislation provides for dissolution of the marriage and its consequences of child custody, visiting and maintenance. The Family Code that is in force today in Albania provides that during a divorce, the spouses may resolve its child-related consequences. This can also be done at a later stage. Parents may be of Albanian nationality or different nationalities, and the Albanian courts have jurisdiction to decide the dispute under the current legislation. Enforcement of final judgments has been and remains a challenge for Albania, which has been penalised time after time by the European Court of Human Rights (ECtHR). In this framework, the enforcement of the judgments on custody and access rights in case of divorce remain absolutely crucial, when taking into consideration the movement abroad of one of the spouses. The problem becomes more complex when the couples are binational, because different courts have jurisdiction to decide on maintenance and visiting, and the court must determine which judgments should be enforced in which countries. Albania has its own legislation on maintenance and post-divorce visiting, but also on the enforcement of final judgments. The adopted legislation has been harmonised with the international legal instruments, which were signed and ratified by Albania over many years and are directly applicable according to the Constitution. The legal framework governing the above-mentioned situations is based on the main principle of the best interests of the child, but also considers public order and the fair balance between the interests of the two parents and children. Nowadays, Albania has ratified the Convention on the Rights of the Child of 1989 (CRC), the European Convention on Human Rights (ECHR), the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Child Abduction) and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for Protection of Children (Hague Child Protection). All are now part of its internal legislation. Also, Albania has ratified a number of bilateral agreements, which can be applied in the case of recognition and enforcement of foreign decisions including child custody and access rights after divorce.