CUSTODY OF MINORS
What Happens to Children in a Divorce? Who will have the custody of minors? These are the main questions many are asking. investigations will be able to deal with:
FURTHER DETAILS ON THE RELIABILITY OF MINORS
COMMITMENT SHARED ADOPTION - OF MINORS - CONSENT PURSUANT TO ARTICLE 46 LAW 184/1983 OF THE PARENT NEVER LIVING WITH THE MINOR - NECESSITY - ARTICLE 4 LAW 54/2006 - PRINCIPLE OF BIGENITY - RELEVANCE ON THE PRECECTIVE CONTENT OF ARTICLE 317-BIS COD CIV. - CONFIGURABILITY (LAW 184/1983, ARTICLES 44 AND 46)
In terms of adoption in particular cases, it has preclusive effect, pursuant to article 46 of law no. 184, the dissent expressed by the natural parent not living with the adoption of the minor child pursuant to article 44, paragraph 1, letter b), of the aforementioned law, having to consider himself in any case "exercising parental authority", even when the same is not never lived with the minor; indeed, the law 8 February 2006 n. 54 on the exercise of parental responsibility in the event of a crisis and on shared custody, also applicable to the children of unmarried parents, has correspondingly reshaped article 317-bis of the Civil Code. The principle of two-parenting, in fact, has informed the preceptive content of the aforementioned rule, eliminating any discrepancy in the discipline between legitimate and natural children, so that the cessation of cohabitation between natural parents no longer leads to the cessation of the exercise of parental authority.
Court of Cassation, Civil Section I, sentence 10 May 2011 n. 10265 – Pres. Luccioli; Re. Campanile; Pm (conf.) Zeno
JOINT CUSTODY OF CHILDREN - ELIGIBILITY - EFFECTS - MAINTENANCE - OBLIGATION TO CORRESPONSION OF AN ALLOWANCE BY ONE OF THE PARENTS - PERSISTENCE - PARENT'S EQUAL CONTRIBUTION TO MAINTENANCE - AUTOMATIC CONSEQUENCE OF THE JOINT CUSTODY - ARTICLE 898/1970 CONFIGURABILITY 6; LAW 74/1987, ARTICLE 11; CC, ARTICLE 155)
The joint custody of children to both parents - provided for in Article 6 of the Divorce Law (1 December 1970 no. 898), as replaced by Article 11 of the Law of 6 March 1987 no. 74, analogously also applicable to the personal separation of spouses - is an institution which, since it is based on the exclusive interest of the minor, does not eliminate the patrimonial obligation of one of the parents to contribute, by paying a check, to the maintenance of the children, in relation to their life needs, on the basis of the family and social context to which they belong, on the other hand it is excluded that the institution itself implies, as an "automatic" consequence, that each of the parents must provide equally, directly and autonomously , to the aforementioned requirements (in enunciating the principle in principle, the Supreme Court noted that it is confirmed in the new provisions of law no. 54 of 8 February 2006, on the subject of shared custody, moreover subsequent to the contested sentence).
Court of Cassation, Civil Section I, judgment no. 18187 – Pres. Luccioli; Rel. Spagna Musso; Pm (parz. Diff.) Golia
RIGHT OF CUSTOMER AND RIGHT OF VISIT - DIFFERENTIATED PROTECTION - RIGHT OF VISIT OF THE NON-CUSTOMER PARENT - VIOLATION - TRANSFER OF THE RESIDENCE OF THE CHILD - ILLICITY - EXCLUSION - IMMEDIATE RETURN OF THE CHILD TO THE STATE OF HIS HABITUAL RESIDENCE - OBLIGATION OF THE RIGHT OF VISIT - METHODS AND LIMITS - NEW CODE REGULATION PURSUANT TO ARTICLE 155-QUATER COD. CIV., INTRODUCED BY ART. 1, PARAGRAPH 2, OF LAW N. 54 OF 2006 (CC, ARTICLE 155-QUATER; LAW 54/2006, ARTICLE 1)
The Hague Convention of 25 October 1980 on the civil effects of international child abduction, ratified and enforced in Italy with Law 64/1994, clearly distinguishes the right of custody from the right of access and provides for differentiated protection for the two situations , sanctioning the immediate return of the minor to the State of habitual residence exclusively for the hypothesis of illegal transfer or detention, which occurs only in the event of violation of the right of custody or custody, while, when the custodial parent chooses a different residence, the characterization of the transfer as lawful prevents the other parent from requesting the immediate return of the child, since the latter can only request the Central Authority, pursuant to Article 21 of the Convention, to take all the necessary steps to remove, as far as possible, any obstacle to the exercise of your right, or to contact the judge of separation or divorce, to obtain a reassessment of the conditions of custody in the same way as the new circumstance of the transfer of the minor's residence. The related procedure, among other things, has recently also been formalized in the Civil Code, through the introduction, by means of Article 1, paragraph 2, of Law no. 54 (Provisions regarding the separation of parents and shared custody of children), of article 155-quater which, in paragraph 2, provides that "in the event that one of the spouses changes residence or domicile, the other spouse may ask, if the change interferes with the procedures for the assignment, the redefinition of the agreements or measures adopted, including economic ones ".
Court of Cassation, Civil Section I, sentence 5 May 2006 n. 10374 – Pres. Luccioli; Rel. San Giorgio; Pm (conf.) Maccarone
DIVORCE - OBLIGATIONS TOWARDS THE CHILDREN - CUSTOMER'S CHILDREN - SHARED CUSTOMING - DEROGABILITY - CONDITIONS - FAILURE TO PAY THE MAINTENANCE ALLOWANCE AND DISCONTINUOUS EXERCISE OF THE RIGHT OF VISIT - RELEVANCE - FOUNDATION (CC, ARTICLES 155/1970 AND 155) , ARTICLE 6; LAW 74/1987, ARTICLE 11; LAW 54/2006, ARTICLE 4)
The rule of shared custody of children to both parents, provided for by Article 155 of the Civil Code with reference to the personal separation of the spouses, also applicable in cases of dissolution or termination of the civil effects of marriage, by virtue of the reference made by the 'article 4, paragraph 2, of the law 8 February 2006 n. 54, can be waived only if its application is "prejudicial to the interest of the minor", as in the case in which the non-custodial parent has totally defaulted on the obligation to pay the maintenance allowance in favor of minor children and has exercised his right to visit discontinuously, as these behaviors are symptomatic of his inability to face those greater responsibilities that shared custody also entails for the parent with whom the child does not cohabit permanently.
Court of Cassation, Civil Section I, sentence 17 December 2009 n. 26587 – Pres. Proto; Rel. Schirò; Pm (conf.) Pratis
NATURAL FILIATION - JOINT CUSTOMER - DETERMINATION OF THE TIMES AND WAYS OF PRESENCE AT EACH PARENT - DETERMINATION ENTRUSTED TO THE JUDGE (CC, ARTICLE 155)
Since Article 155 of the Civil Code provides that the minor child has the right to maintain a balanced relationship with both parents, its implementation is left to the judge, who to achieve the aforementioned purpose "adopts the measures relating to the offspring with exclusive reference to the moral and material interest of it ", determining exclusively in relation to this interest" the times and methods "of its presence with each parent, taking note only if not contrary to the interest of the child of the same agreements between the parents.
Court of Cassation, Civil Section I, sentence 26 September 2011 n. 19594 – Pres. Luccioli; Rel. Felicetti; Pm (conf.) Fucci
NATURAL FILIATION - IN GENERAL - SHARED CUSTOMING - EXCEPTIONS - REASON - NECESSITY - REQUIREMENTS - OBJECTIVE DISTANCE BETWEEN THE PLACES OF RESIDENCE OF THE PARENTS - RELEVANCE - EXCLUSION (CC, ARTICLES 155 AND 317; LAW 54/2006, ARTICLE 4)
With regard to the custody of children born out of wedlock, the rule of shared custody of children can be waived only if its application is "prejudicial to the interest of the minor", with the twofold consequence that any ruling of exclusive custody must be supported by a motivation not only more positively on the suitability of the custodial parent, but also negatively on the educational unsuitability or manifest deficiency of the other parent, and that shared custody cannot reasonably be considered precluded by the objective distance existing between the places of residence of the parents, since said distance may affect only the discipline of the times and modalities of the presence of the minor with each parent.
Court of Cassation, Civil Section VI, Ordinance 2 December 2010 n. 24526 – Pres. Vittoria; Rel. Schirò; Pm (conf.) Pratis
FILIATION - IN GENERAL - MAINTENANCE ALLOWANCE - SHARED CUSTOMER SERVICE - PLACEMENT OF CHILDREN WITH A PARENT - CORRESPONSION OF THE ALLOWANCE TO BE PAID BY THE NON-COLLECTIVE PARENT - EFFECTS (CC, ARTICLE 155; LAW 54/2006, ARTICLE 4)
With regard to the maintenance of children born out of wedlock, the rule of shared custody of both parents, pursuant to Article 155 of the Civil Code, also applicable to them by virtue of the postponement made by Article 4 of Law 54/2006 , does not imply an exception to the principle according to which each parent must provide for the satisfaction of the needs of their children in proportion to their income. In application of it, therefore, the judge must order, where necessary, the payment of a periodic allowance which, in the case of placement prevalent with a parent, must be paid by the non-resident parent, providing for the determination of the same article 155 of the Italian Civil Code. in relation to the time spent by the child with each parent.
Court of Cassation, Civil Section I, sentence no. 22502 – Pres. Luccioli; Rel. Felicetti; Pm (conf.) Zen
NATURAL FAMILY - IN GENERAL - KEEPING CHILDREN BORN OUT OF MARRIAGE - OBLIGATION TO BE PAID BY EACH PARENT - SHARED CUSTOMER RELATIONSHIP - PREVALUE PLACEMENT WITH ONE OF THE PARENTS - CHILDREN BECAUSE OF THE OTHER PARENT - CONFIGURABILITY (261 CC, 155)
With regard to the maintenance of children born out of wedlock, each parent must provide for the satisfaction of their needs in proportion to their income and the judge may order, where necessary, the payment of a periodic allowance, which, in the event of custody shared with placement prevalent with one of the parents, it can be charged to the non-placement parent, given the provisions of Article 155 of the Civil Code, in the part in which it provides that the determination of the allowance also takes place considering the issues of permanence of the child with each parent.
Court of Cassation, Civil Section I, sentence no. 23411 – Pres. Luccioli; Rel. Dogliotti; Pm (conf.) Abbritti
NON-MARRIED PARENTS - CESSATION OF COHABITATION - MEASURES RELATING TO CUSTOMER'S CHILD AND MAINTENANCE OF THE SAME - JURISDICTION - PURSUANT TO LAW 54/2006 ON SHARED CUSTOMING - ALSO APPLICABLE TO NATURAL FILIATION - JURISDICTION BY COURT - FOUNDATION (LAW 54/2006, ARTICLE 4; CC, ARTICLES 155, 261 AND 317-BIS)
The law 8 February 2006 n. 54 on the exercise of parental responsibility in the event of a crisis of the parental couple and on shared custody, also applicable to proceedings relating to children of unmarried parents, has correspondingly reshaped article 317-bis of the Civil Code, which, innovated in its mandatory content, however, continues to represent the legal status of natural parental responsibility and custody of the child in the crisis of the de facto union, so that the competence to adopt the measures in the interest of the natural child belongs to the court for minors, in force of article 38, paragraph 1, of the implementing provisions of the Civil Code, in part here not repealed, not even tacitly, by the news. The contextuality of the measures relating to the exercise of parental authority and the custody of the child, on the one hand, and the economic ones relating to their maintenance, on the other, prefigured by the new articles 155 and following of the Civil Code, has also determined - in harmony with the need to avoid that minors receive unequal treatment from the legal system depending on whether they are born to married parents or unmarried parents, as well as to exclude interpretative solutions that involve a sacrifice of the principle of concentration of safeguards, which is an aspect central to the reasonable duration of the trial - an attraction, on the part of the specialized judge himself, of the competence to also provide for the extent and manner in which each of the natural parents must contribute to the maintenance of the child.
Court of Cassation, Civil Section I, Ordinance 3 April 2007 n. 8362 – Pres. Adamo; Rel. Giusti; Pm (conf.) Velardi
MEASURES CONCERNING THE RELIANCE OF MINORS AND MEASURES OF FORFEITURE OF PARENTAL POWER - COMPETENCE OF THE ORDINARY COURT AND THE COURT FOR MINORS - IDENTIFICATION - CRITERIA - RELEVANCE OF THE NEW ARTICLE 155 OF THE COD. CIV. ON THE SHARED CUSTOMER - EXCLUSION - BASIS (CC, ARTICLE 155)
With regard to the custody of minors and provisions for forfeiture of parental authority, since the distinction between the jurisdiction of the ordinary court and that of the court for minors must be identified with reference to the petitum and the petendi cause, fall within the jurisdiction of the court for minors. , pursuant to the combined provisions of articles 330 of the Civil Code and 38 of the implementing provisions of the Civil Code, the requests aimed at obtaining the provisions for forfeiture of parental authority; while the jurisdiction of the ordinary court, at the time of the personal separation of the spouses, the sentences of custody of minors that aim only to identify which of the two parents is more suitable to take care of the child, without the importance of the new provision of article 155 of the Civil Code on shared custody, since the custody of minor children, in relation to which the ordinary court is competent as a judge of separation on the basis of this article, does not affect the vested authority to both parents, but, according to the express provision referred to in Article 317, paragraph 2, of the Civil Code, it interferes only with the procedures for exercising the authority itself.
Court of Cassation, Civil Section I, order no. 6841 – Pres. Luccioli; Rel. Felicetti; Pm (conf.) Fucci
SEPARATION AND DIVORCE - CUSTOMING CHILDREN TO ONE PARENT - CHOICES OF "GREATER INTEREST" FOR THE CHILD - PARTICIPATION OF THE OTHER SPOUSE - NECESSITY (CC, ARTICLE 155)
Article 155 of the Civil Code, in remitting to the decisions of both spouses the choices of greatest interest for the children, does not impose, with regard to them, any specific information burden on the custodial parent, since this burden must be considered implicitly burdening the latter. the latter only in the event that the information is necessary so that the non-custodial parent can participate in the decision with regard to exceptional and unforeseeable events. In the choices of "greatest interest" in the minor's daily life, such as those relating to his education, in relation to which Article 155 of the Italian Civil Code expressly provides for the duty of supervision of the non-custodial spouse, each parent, in any case and in every time, has autonomous power to take action towards the other to agree on any modalities, and, failing that, appeal to the judicial authority.
Court of Cassation, Civil Section I, sentence 26 September 2011 n. 19607 – Pres. Proto; Rel. Bisogni; Pm (conf.) Lettieri
PERSONAL SEPARATION OF SPOUSES - CUSTOMIZATION OF SHARED CHILDREN - RE-MODULATION OF THE PERIODS OF ATTENDING THE CHILD WITH THE PARENT - OFFICIAL POWER OF THE JUDGE - CONFIGURABILITY - CASES (CC, ARTICLE 155)
When changing the conditions of personal separation of the spouses, it falls within the unofficial powers of the judge to reshape the periods in which the parent can keep with him the child whose custody is arranged, in relation to the new situation that has arisen. In the present case, the Supreme Court found that the provision of the trial judge who, in the complaint against the provision to modify the conditions of separation, had confirmed the shared custody of the minor daughter and who, taking into account the when the mother had moved for work reasons, had ordered the placement of the aforementioned with the latter, in her new residence, reshaping, in relation to the new situation that has arisen, the regime of encounters between the minor and her father, adequately motivating in this regard .
Court of Cassation, Civil Section I, judgment no. 6339 – Pres. Luccioli; Rel. Felicetti; Pm (diff.) Cesqui
PERSONAL SEPARATION - CUSTOMER CHILD - SHARED CUSTOMER SERVICE - A PARENT'S PLACE OF WORK - REMARKABLE DISTANCE FROM THE CHILDREN'S RESIDENCE - IRRELEVANCE - CELERITY OF MEANS OF TRANSPORT - TELECOMMUNICATION MEANS (CC, ARTICLE 155)
With regard to the custody of the children, if one of the parents has always maintained an irreproachable conduct, not resulting in the slightest of his inability to participate in the education of the children, the considerable distance from the place of work of the latter does not constitute an impediment to shared custody. last with respect to the residence of the parent placing the offspring, given the current speed of means of transport, including public ones, and the availability of telecommunication means.
Court of Appeal of Trento, branch of Bolzano, decree of 19 December 2008 – Pres. Pacher; Rel. Kapeller
PERSONAL SEPARATION - CUSTOMER CHILD - EXCLUSIVE CUSTOMER - CONDITIONS - VIOLENT CHARACTER OF A PARENT - RELEVANCE
In terms of custody of children, custody to a single parent is more suited to the needs of minors when the other is responsible for serious episodes of violence against the child, thus demonstrating their parental incapacity.
Court of Catania ruling 20 October 2008 – Pres. Maiorana; Rel. Escher
SEPARATION AND DIVORCE - SEPARATION - CUSTODY OF SHARED CHILDREN - PARENTAL POWER - TRANSFER OF THE CHILD'S RESIDENCE - UNILATERAL DECISION BY THE COLLOCATING PARENT - ILLEGALITY (CC, ARTICLES 155 AND 155-QUATER)
With regard to the transfer of residence of the minor child entrusted to both parents, the rule referred to in Article 155-quater, paragraph 2, of the Civil Code must necessarily be read in combination with the provisions of Article 155, paragraph 3, of the the same Code, regarding the lack of decision-making autonomy of parents, who are required, in the joint exercise of parental responsibility, to take decisions concerning the lives of their children by mutual agreement. It follows that the placement parent, free to establish where he believes his residence, must consider not only the consequences of the decision to move produced in the sphere of the minor's interests, but also the possible infringement of the right of the other co-foster spouse and, in the absence of the latter's consent, he / she must apply to the judge who will ensure the right of the minor to two parents, taking into account the new housing and environmental structure that he / she will have to face.
Court of Appeal of Naples, section for minors and the family, decree of 17 October 2008 – Pres. e rel. De Luca
PERSONAL SEPARATION OF SPOUSES - EFFECTS - MEASURES FOR CHILDREN - CUSTODY OF SHARED CHILDREN - DEROGATIONS - MOTIVATION - NECESSITY - REQUIREMENTS - CONFLICT BETWEEN SPOUSES - RELEVANCE - EXCLUSION - FOUNDATION (CC, ARTICLES 155 AND 155-BIS)
With regard to the personal separation of spouses, the rule of shared custody of children can be waived only if its application is "prejudicial to the interest of the minor", with the twofold consequence that any ruling of exclusive custody must be supported by a motivation not only more positively on the suitability of the custodial parent, but also negatively on the educational unsuitability or manifest deficiency of the other parent, and that shared custody cannot reasonably be considered precluded by the mere conflict existing between the spouses, since it would otherwise only a residual application, actually ending up coinciding with the old joint assignment.
Court of Cassation, Civil Section I, judgment no. 16593 – Pres. Luccioli; Rel. Morelli; Pm (conf.) Martone
PERSONAL SEPARATION - CHILD CUSTOMER - EXCLUSIVE CUSTOMER OF MINORS - CONDITIONS - SYSTEMATIC DEVELOPMENT OF A PARENTAL FIGURE - SUBSIST (CC, ARTICLES 155 AND 155-BIS)
With regard to the custody of children, if it is true that the persistence of a serious situation of conflict does not, in itself, a priori exclude custody to both parents, nevertheless it is necessary to search for the cause and verify any negative impact on the peaceful development of the minor's personality. In this context, the systematic debasement by one of the spouses of the parental figure of the other prevents any possibility, in the interest of the child, of a fruitful experience of shared custody.
Court of Naples, sentence 12 May 2008 n. 5358 – Pres. Montella; Rel. Napolitano
PERSONAL SEPARATION - CUSTOMER'S CUSTOMER - SHARED CUSTOMER'S CUSTOMER - OBSTATIVE CIRCUMSTANCE - FAILURE TO PAY THE MAINTENANCE FEE FOR THE CHILDREN - EFFECTS (CC, ARTICLES 155 AND 155-BIS)
Failure to pay the child support contribution, demonstrating an absolute lack of reliability and responsibility on the part of the defaulting parent, as well as a lack of sensitivity to the real and concrete needs of the children, justifies the revocation of the shared custody and requires the exclusive custody of the offspring to the other parent.
Court of Appeal of Bologna, judgment of 7 May 2008 – Pres. Pilati; Rel. Fischetti
PERSONAL SEPARATION - CUSTOMING CHILDREN TO BOTH PARENTS - OBSTATIVE CAUSES (CC, ARTICLES 155 AND 155-BIS)
The negative evaluation of parental suitability coming from the parent who opposes the sharing of custody of the children, as well as the conflict between the parents, cannot preclude, in themselves, shared custody, necessarily having to split the aspect of conflict. of a couple from that relating to the relationship with children.
Court of Messina order of 26 April 2008 – Giudice istruttore Lombardo
PERSONAL SEPARATION - CUSTOMER CUSTOMER FOR CHILDREN - EXCLUSIVE CELEBRATION OF MINORS - CONDITIONS - LACK OF INTEREST SHOWN BY ONE OF THE PARENTS - RELEVANCE (CC, ARTICLES 155 AND 155-BIS)
If it is true that the shared custody modality is the one that must be evaluated as a priority, it must also be considered true that exclusive custody can be arranged whenever a parent, with his procedural behavior and with the failure to fulfill the obligations of maintenance, care , assistance and education of children, has shown little consideration for the needs and requirements of minors, with exclusive reference to the moral and material interest of the children in whose interest all the measures concerning them must be adopted.