The child custody regime in Italy

The child custody regime in Italy has changed over the years. Starting with L. 54/2006, the concept of shared custody was introduced into our legal system to regulate the exercise of parental responsibility, based on the principle of bigenitoriality.

Shared custody

This legislation significantly changed the approach previously adopted for child custody, turning what was only a possibility (joint custody) into the solution to be adopted as a priority. As a result, sole custody to a single parent now requires a detailed justification in the court order.

Article 337-ter of the Civil Code in fact states that the judge must assess as a priority the advisability of the minor children being entrusted to both parents, thus guaranteeing the children’s right to a balanced and constant relationship with each parent.

Sole custody

Sole custody of a child is therefore a measure that requires a precise motivation justifying the choice in favour of one parent over the other. This decision is based not only on the suitability of the parent designated as custodian, but also on the manifest lack of the other parent’s educational duties. Moreover, the mere geographical distance between the parents’ residences is not in itself an obstacle to shared custody, unless serious difficulties arise in maintaining a balanced and continuous presence of the non-custodial parent.

Balanced and constant presence with both parents

The law thus provides that, except for serious reasons, shared custody must allow the child’s balanced attendance with both parents. However, the judge may establish a visitation regime that deviates from formal equity in order to ensure the child’s harmonious and serene growth.

This principle has been emphasised by numerous judgments of the Supreme Court of Cassation, which reiterate that shared custody does not necessarily presuppose an equal division of time between the parents; the judge may, in the child’s interest, establish an arrangement that deviates from this, in order to ensure the child the situation most suited to his or her well-being and harmonious and serene growth (Cass. 4790/2022; Cass. 16231/2023; Cass. 19323/2020; Cass. 3652/2020).

The law therefore merely outlines the children’s right to have constant and balanced attendance, without specifying the exact times of presence with each parent, leaving it to the judge to interpret and apply the principle in the best interests of the child.

This a translation of an article published in Italian at the followink link:

https://www.studiosabatino.it/laffidamento-del-minore/