Custody and maintenance of children in Italy aim to regulate the exercise of parental responsibility by parents when they are no longer a couple.
The custody order becomes necessary in cases of personal separation, divorce, and non-cohabitation of parents, whether they are married or not.
In 2012, the law n. 219/2012 took a significant step towards recognizing the dignity of all children and promoting equality between parents with a fundamental reform of filiation.
The legal equality of all children, whether born within or outside of marriage, was recognized.
Previously, law n. 54 of 2006 simplified custody matters, eliminating different forms of custody and limiting them to two types: shared custody and exclusive custody.
According to article 316 of the Civil Code, “Both parents have parental responsibility, which is exercised jointly, taking into account the child’s abilities, natural inclinations, and aspirations. The parents, by mutual agreement, establish the habitual residence of the minor.”
The child has the right to be supported, educated, instructed, and morally assisted by the parents in accordance with their abilities and inclinations.
Parental responsibility is closely linked to the role of being a parent and places the interests of the children at a higher level than that of the parents, regardless of whether they were born inside or outside of marriage or through adoption.
Article 337 of the Civil Code establishes that the judge “primarily considers the possibility that the minor children remain in the care of both parents or establishes which of them the children are entrusted to.”
To protect the child and care for their interests, the parent to whom they are entrusted must be capable of ensuring the child’s adequate psycho-physical development and provide a healthy environment that meets all their material and emotional needs.
These provisions apply in cases of separation, divorce, termination of civil effects, annulment, nullity of marriage, and proceedings relating to children born outside of marriage.
Types of Custody
When a couple separates, divorces, or files for divorce, the judge is responsible for determining the custody of minor children.
First and foremost, it is necessary to establish where the child will live, so that he/she will have a stable residence with one of the parents.
Custody can be divided into:
- Shared Custody
This type of custody is preferred by law.
It is based on the principle of joint parenting, where the child has the right to maintain a stable relationship with both parents, who are equally responsible for their care and education, and jointly make decisions regarding matters of major interest.
- Exclusive or Super-exclusive Custody
This type of custody is requested by one or both parents in situations of particular conflict and is granted in limited cases.
This does not mean that the non-custodial parent loses their parental responsibility or participation in decisions of major interest.
Custody of Children in Unmarried Couples
In the specific case of unmarried parents, whether they are cohabiting or have never been a couple, the custody of children follows the same rules as children born during marriage. The basic principle of joint parenting remains the same, with both parents having the same rights and parental authority. The child must have a stable residence with one of the parents, just as it would be for married parents.
If there is an agreement, shared custody can be chosen; if there is no agreement, a request can be made for exclusive custody. The competent court is not the one for minors but the ordinary court.
Custody of Children in the Cartabia Reform
The Cartabia reform introduced greater consideration for minor children in cases that concern them.
The “parenting plan” was introduced, a sort of diary that recounts the child’s life before the separation, including daily commitments, school and sports activities, habits during school time, vacations, and free time.
The parenting plan provides the judge with information about the child’s routine to facilitate decision-making without disrupting the child’s life.
Based on the parenting plan, the judge will have all the necessary elements to establish custody, residence, and visitation rights for the non-custodial parents.
Hearing of Minor Children
In cases of judicial separation and divorce, the hearing of minor children is provided, especially when there is no agreement on custody. Unlike in the past, the hearing is not limited based on the child’s age. Children under twelve may demonstrate discernment and, in that case, may be heard in court, or arrangements can be made for them to be heard in protected environments with the assistance of mediation figures. If the minor chooses not to be heard, their will must be respected.
The family home is usually assigned to the parent with whom the child will live. After further investigations and verifications, the initial decisions may be confirmed or modified.
“Each parent is obligated to support the children, proportionate to their income.”
The amount of child maintenance is agreed upon by the parents. If an agreement is not possible, the matter must be decided judicially.
The amount of maintenance allowance must be established following a series of criteria:
- The actual needs of the children.
- Maintaining the standard of living enjoyed by the children when living with both parents.
- The time spent by the children with each parent.
- The economic resources of each parent.
- The economic value of the time spent by each parent caring for the child (including household tasks).
A parent who fails to provide maintenance contributions for the child may face serious consequences, including legal penalties.
Jurisdiction in Cases Involving Custody and Maintenance of Children in International Couples
The issue of jurisdiction in cases of international divorce has been the subject of various judicial decisions. For example, in the case of personal separation between an Italian citizen and a British citizen, whose marriage was celebrated in Italy, and a child was born, the issue of jurisdiction between Italian and British courts was addressed (Cassation, Supreme Court, sentence 17676/2016).
The Supreme Court declared Italian jurisdiction concerning issues related to personal separation and foreign jurisdiction regarding matters concerning the minor child and their custody.
Specifically, the exclusive jurisdiction to decide on matters concerning the child must be assigned to the court of the country where the child habitually resides, even if these issues are presented jointly with the request for personal separation of the spouses.
The criterion of habitual residence is also invoked by the Hague Convention of 1996, concerning jurisdiction, applicable law, recognition, enforcement, and cooperation in matters of parental responsibility and measures for the protection of minors. The convention applies to signatory States that are not European Union member states, including the United Kingdom after Brexit.
In cases where a child is internationally abducted (international child abduction), which occurs when one parent takes the child abroad without the other parent’s consent, different implications arise.
The Family Law Department of Boccadutri International Law Firm provides legal assistance and support for custody-related matters.
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