At the beginning of a divorce or separation, involving children, parents often have misconceptions or different expectations about child custody. Probably parents don’t have a proper understanding of sole and joint custody but it is critical to understand these concepts and how custody determinations are made so that you do not engage in fruitless litigation or make mistakes .
Child custodial duties in Italy are governed by Law 54/2006, Law 219/2012 and Legislative Decree 154/ 2013; both legislative measures have renewed the Civil Code, repealing part of it and introducing in the Italian legal system, in line with EU law, the new concept of parental responsibility (responsabilità genitoriale), that has replaced the parental authority.
In accordance with Council Regulation (EC) No 2201/2003 the term parental responsibility means “all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term includes rights of custody and rights of access”.
Italian law provides for two types of child custody:
- sole custodywhich grants the full custody to one of the parents. The custodial parent has the right to decide on everything regarding the child’s daily life, to exercise full parental responsibilities (unless a judge gives other provisions). This type of custody leaves to the non-custodial parent limited responsibilities;
- joint custodymeans that both parents are entitled to the custody, even if the child lives with one of the parents.
All the decisions regarding child custody must be taken by the court that, according to the spirit of the law, must give priority to the implementation of the joint custody between parents.
The main factors that courts need to consider when awarding child custody are:
– the minor and parents’ mental and physical health, age and sex;
– the emotional bond between the child and the parents;
– the minor’s preference (if he/she’s above the age of 12);
– the parents’ lifestyle;
– the parents’ ability to provide for the child;
When there is mutual consent between parents, and both want a joint custody, the judge will accept the agreement and only determine the placement, residence and visiting times of the child.
If no agreement is reached by the parents, the court will rule on the spheres of action of each parent maintaning a joint custody regime, where it does not go against child’s interest.
In accordance with the principles governing the matter, the underage child has the right to maintain a balanced and continuous relationship with each parent, and to receive care, education, schooling and moral assistance from both parents.
Joint cusotdy is the preferred arrangement for the custody of children, both parents must actively participate in the care and education of their children, jointly making any major decisions regarding the child.
This type of custody is an important innovation, introduced in order not to deprive children of the continuity of the relationship with both parents and its main aim is to avoid worsening the traumatic emotional shock related to the the division of the family.
In no case joint custody can be negotiate by parents and any arrangement in which the parents had entered into a mutual agreement to assign the custody of the child solely to the mother or father has to be rejected by the court.
According to Section 337 quater Civil Code sole custody is only ordered when the joint custody would go against child’s interest.
In this regard, the Supreme Court of Cassation has made clear that “all exceptions to the general rule of the joint custody shall be evaluated by judges case by case, and should be allowed only in three cases: a) when one of the parents is undoubtedly and seriously unsuitable to provide an education to the children, or b) has an “abnormal way of life” which appears to be dangerous to the children, or c) when there is a categorical refusal of the children to have a relationship with a parent. The existence of a disagreement between the parents is not relevant, unless the conflict is so serious to alter and affect the balanced growth of the children.”
In case of joint custody the interest parent, every time he/she feels that the other parent’s behaviour is compromising the child’s interest, can apply, with the legal aid of a lawyer, to ask the court to turn the joint custody regime into the sole one.
Even if the custody regime changes from shared to sole it must be noticed that, unless the court decides otherwise, the most important decisions for the child have to be taken by both parents. Moreover, the non-custodial parent keeps the right and the duty to oversee on instruction and education of the child and he/she can go to court when the decision taken by the custodial parent.
Kenton & Miles’ professionals can guide you to explore all the possible solutions regarding custody matters. We handle all custody matters, including initial determination in separation or divorce and modification of custody. Our team of English-speaking Italian lawyers can assist both local and foreign clients. Thanks to the support of an international network of experienced and skilled attorneys coming from different legislations, Kenton & Miles Legal can provide you with all the assistance you need.
Should you have any questions do not hesitate to contact our Italian Department or send an email to email@example.com.