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Shared Custody

28 Jul 2023 - Divorce & Family Law - Min Read 3 min
Shared Custody

Shared custody is a legal arrangement in which both parents of a minor continue to share the responsibility for the care, education, and well-being of the child, despite their separation, divorce, or the end of their relationship. It is the type of custody that should be favored according to the law.

What does Shared Custody entail?

Shared custody involves both parents being equally involved in the lives of their children.

It is based on the principle of joint parenting, wherein a child has the right to maintain a stable relationship with both parents, who are equally committed to ensuring their physical and mental health, education, and have equal rights to make decisions concerning schooling, extracurricular activities, religion, and health.

This type of custody aims to promote a balanced involvement of both parents in the child’s life and to foster a healthy relationship with both.

It is easier to establish shared custody through an agreement between the parents, but it remains the preferred solution even in a judicial setting.

How does Shared Custody work?

In cases of shared custody, “the parents agree on the habitual residence of the child.” In most cases, the child resides primarily with one parent (the custodial parent) while the other parent has regulated visitation rights.

Both parents must collaborate and agree on all major decisions regarding their children.

The choice of the custodial parent is not automatic, as the so-called “maternal preference” has been overcome. The decision is based solely on the best interest of the children.

Listening to the child’s perspective

Regarding child custody, Italian law stipulates that children must have a say in all matters concerning them. The right of the child to express their opinion is also guaranteed at the European level.

“A minor who has reached the age of twelve and, even at a younger age if capable of discernment, is heard by the judge in proceedings in which measures concerning the minor are to be adopted. The child’s views must be taken into account with regard to their age and degree of maturity.

The judge does not conduct the hearing if it is contrary to the child’s interests or manifestly unnecessary, in case of physical or psychological impossibility of the child, or if the child expresses the will not to be heard.

In proceedings where the parents have reached an agreement regarding the conditions of child custody, the judge conducts the hearing only if necessary.

The child can help the judge make a more informed decision, especially when there is a balance between the positions of the father and mother.” (Article 473 bis 4 of the Civil Procedure Code).

The hearing is considered direct when the judge conducts it during a hearing, and it can also be assisted by an auxiliary (psychologist, social worker, etc.).

The hearing is considered indirect when the child’s hearing is delegated entirely to an auxiliary in a location other than the courtroom.

How to request Shared Custody?

To evaluate the specific case and potentially request shared custody, you should seek the assistance of a lawyer who will apply to the court after assessing the personal situation of the parents.

The documentation to be submitted should include a written report explaining the reasons for requesting shared custody and a detailed plan illustrating how the child’s custody will be managed, the so-called “parenting plan,” introduced by the Cartabia reform.

Shared Custody and Child Support

Each parent must contribute to the financial support of the child in proportion to their income.

If necessary, the judge may establish a periodic allowance for each parent to respect this principle of proportionality.

The amount of the child support allowance is determined based on several factors:

  • The child’s current needs: Every age and stage of life have different requirements. A young child’s needs differ from those of a teenager who is studying and engaging in social activities with peers.
  • The living standard the child enjoyed when the parents were still together: This is to avoid psychological trauma resulting from abrupt changes in their well-being.
  • The economic means of both parents.
  • The extent of each parent’s contribution to domestic work and caring for the child: It may be the case that one parent has a low or non-existent income but dedicates a lot of time to domestic duties and the child’s needs.

If you are going through a legal or interpersonal separation or divorce, it is essential to consult a family law attorney to get more information about shared custody and protect your children’s rights.

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Calogero Boccadutri

Calogero Boccadutri is the Managing Partner of Boccadutri International Law Firm. He has trial experience in Forex, Personal Injury and Administrative litigation.

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