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Sole Custody

Recently updated on 30 Aug 2023

25 Aug 2023 - Divorce & Family Law - Min Read 3 min
Sole Custody

It is possible to request sole custody of minor children to the mother or father to the judge only for specific reasons.

In the case of sole custody, both parents retain parental responsibility over the children, but this responsibility is largely exercised by the custodial parent, whether it’s the mother or the father.

This type of custody can also apply to cases of children born out of wedlock.

Decisions of major importance – related to education and health of the children – will still be made jointly by the parents.

This circumstance changes in the case of the so-called super-sole custody.

Requirements for Requesting Sole Custody

The decision of sole custody is made taking into account the children’s best interest, as well as their will, if they are of sufficient age to willingfully express their own opinion.

To request sole custody, certain prerequisites must be met:

  • Shared custody could be detrimental to the children;
  • One of the parents shows impossibility or incapacity to dedicate themselves to the children;
  • One of the parents shows complete moral or material disinterest towards the children;
  • The minor, if of an age capable of discernment, has no relationship with one of the parents for justifiable reasons that lead him/her to prefer staying with the other parent;
  • One of the parents is guilty of episodes of violence against the children or the other parent;
  • Parental alienation;
  • Child abduction, resulting in the other parent’s inability to exercise their parental rights and duties.

In some cases, to prevent international child abduction, a denial on the minor’s travel can be requested with a precautionary application.

Situations that DO NOT lead to or justify a sole custody arrangement:

  • Same-sex relationship of one of the parents;
  • Choosing a religion which is different from Catholicism;
  • Arrest of one of the parents, until there is a conviction;
  • Significant geographical distance between the residences of the two parents;
  • Transfer of one of the parents to another city;
  • When one of the parents frequently entrusts the children to grandparents;

How to Request Child Sole Custody?

To request sole custody of a child, it is necessary to submit a specific application to a judge at any time, even if the judge has already decided to proceed with a shared custody arrangement.

The evaluation always falls under the jurisdiction of the court, and if the Judge deems that this solution is the one that best safeguards the child’s interest, the application will be accepted.

Since sole custody is a residual option, the court’s decision must adequately motivate on the reasons underlying the choice of this form of custody.

The reasoning for the decision should include the criteria by which a parent has been deemed suitable for getting custody, but also the “negative motivation,” that is, explanations as to why the other parent has been considered incapable of caring for the child.

Consequences of Sole Custody

Sole custody entails a series of obligations for the parent to whom custody of the child is granted.

This situation of exclusivity does not deny the other parent their visitation rights, which will be regulated accordingly, and the right to participate in significant decisions concerning the child.

It might also occur that the rights of the non-custodial parent are denied or limited by the judge due to the same parent’s behavior, or there might be a need to establish a “neutral” location for the visits to take place, ensuring that these meetings occur only in the presence of third parties.

Super-Exclusive/Strengthened Custody

A subspecies of sole custody is super-sole custody.

Super-sole custody is considered in exceptional situations, when one of the parents is deemed inadequate for the role they should fulfill, due to incapacity or disinterest (material or moral).

Super-sole custody differs from sole custody because only one parent is allowed to make decisions concerning the children, even though it doesn’t entirely deprive the non-custodial parent of their parental responsibility.

If you are considering requesting sole custody of your children following a separation, divorce, in the case of a family crisis, do not hesitate to contact our Family Law Department as we can help you evaluate the most suitable solution for your case regarding custody.

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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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