The “custody and maintenance of children” are measures aimed at regulating responsibilities of parents following a separation.
The measure of custody of children is required in cases of personal separation, divorce or distancing of parents, whether married or not.
In 2012, law 219/2012 took an important step towards recognising the dignity of all children and parity between parents with the first fundamental reform of filiation.
Legal equality between all children was recognised, whether they were born within or outside of wedlock.
Previously, law 54 of 2006 had simplified the subject of child custody, getting rid of the many different typed of custody and limiting it to just two categories: shared custody and exclusive custody.
Act 316 of the Civil Code: “Both parents will have responsibility for their children, which shall be exercised by mutual agreement taking the capacities, natural inclinations and aspirations of the child into account. The parents shall by mutual consent decide the primary residence of the child.
Parental responsibility is closely linked to the role of the parents and prioritises the interests of the children over those of the parents, regardless of whether they were born in or out of wedlock or whether they were adopted.
Article 337 of the civil code lays out that the judge “shall give priority to the possibility of minor children remaining in the care of both parents or of one parent to whom the children are entrusted.”
To protect the minor and safeguard their interests, the parent to whom he may be entrusted must be in a position to provide them with adequate mental and physical support and must be able to provide a safe living environment, in which their physical and emotional needs may be provided for.
The Law states that these provisions apply “in cases of separation, dissolution, stoppage of civil effects, annulment, and in proceedings relating to children born out of wedlock.”
Types of Custody
When a couple leave each other, separate or ask for a divorce, it is up to the judge to deal with the custody of any minor children.
First of all, it must be decided where the child will live so that they may have a stable residence in the house of one of his two parents.
This arrangement serves to stabilise the minor’s residence
Custody is divided into the following categories:
- Super exclusive
Shared custody is currently the method preferred by judges when they have to express an opinion on the matter.
This is based on the theory of bi-parentship, according to which a child has the right to maintain a stable relationship with both parents, who are equally responsible for the child’s care and education, and who should, in the same way, make decisions relating to schooling and health.
Shared custody of the children, while providing that the children reside predominantly with one of the parents (the custodial parent), does not limit the time spent with the child for the other parent, who has the right to see them freely.
Both parents must collaborate and agree in order to make decisions in the best interests of the child.
The choice of placement parent is also being reviewed, with the so-called “maternal preference” considered to be outdated. The mother is no longer automatically considered to be the primary point of reference for the children. The choice falls to a parent solely on the basis of the children’s interests.
Each parent is obliged to contribute to the maintenance of the child in a way that is proportional to their respective income. If the judge deems it necessary, they may set up a regular payment scheme at the expense of each of the parents corresponding to such an amount that may be deemed to respect the following criteria of proportionality.
The maintenance contribution may be worked out according to a number of different factors:
- The immediate needs of the child. The court recognises that each stage of childhood is different and necessitates different levels of support. The needs of a very young child are clearly different from those of a child who, in addition to their studies, has a social life independent of their family.
- The standard of living which the child had when the parents lived together. If at all possible, it is desirable to avoid potential psychological trauma following a dramatic shift from a condition of wellbeing and comfort to one of hardship.
- The financial situation of each of the parents.
- The extent of contribution made by each of the parents in terms of house work and childcare. It often occurs that one of the two has a very low or non-existent income, but rather dedicates much of their time to taking care of domestic responsibilities or the needs of their children.
The alternative to shared custody is exclusive custody. Usually this is required in the case that one of the two parents is not suitable for the role that they should play in caring for the child.
This is also applicable in cases where the parents are not married.
Clearly, the exclusive custody of a child is not always the result of a domestic conflict, but can be a broader reflection on the immediate interests of the child.
Prerequisites to ask for exclusive custody:
- Shared custody may have negative consequences for the child.
- One of the two parents demonstrates is unable to or incapable of looking after the child
- One of the two parents shows a total lack of interest towards their child
- The child does not have a relationship with one of the parents for justifiable reasons which make them tend towards a wish to be with the other parent.
- One of the two parents is a gambling addict and has run up a large debt.
- One of the two parents is a drug use and has consequently been recognised as mentally incompetent.
- One of the parents has been guilty of acts of violence against the child or their partner.
- One of the two parents has not paid for the maintenance of the child.
- one of the parents has an aggressive nature or can be shown to have manipulated the child to turn him or her against the other parent.
- one of the parents disappears from the life of the child and does not assert his or her right to shared custody.
Situations which shall not lead to exclusive custody
- homosexual relationships of one of the parents
- the choice of a religion other than Catholicism
- the arrest of one of the two parents, providing that there is no conviction.
- A large distance between the two parental residences
- Situations where one of the parents often entrusts the child to the grandparents.
- Cases in which there are continuous fights between the parents, owing to character differences.
How to obtain exclusive Custody
In order to obtain exclusive custody of a child, it is necessary to present the specific case to a judge, at any time, even in cases where a judge has already established shared custody of the child.
The assessment is always up to the judge who may, in the event of suspicion of the illegality of the request, reject it as manifestly unfounded. If, however, the court considers that this is in the best interests of the offspring, it will grant an application for sole custody.
There is also a third possibility, namely that both parents apply for sole custody. The decision is always in the hands of the judge, who will decide on the basis of the best interests of the child.
The reasons for the choice should include criteria on the basis of which parent is deemed more appropriate to look after the child, but also the “negative reasoning”, i.e. reasons for the incapability of the other parent to look after the child.
Consequences of exclusive Custody
Exclusive custody entails a series of obligations for the parent to whom the child is entrusted. This situation of exclusive custody does not deny the other parent the right of access to their child or the right to participate in significant decisions concerning the child. The former of these rights will, however, be limited (in time and manner) according to the decision made by the court.
It is also possible for a situation to occur whereby these rights n(right of access to child and right to participate in significant decisions) are denied by the court due to the conduct of the parent, or where there is a need to establish a ‘neutral’ place where meetings should take place, and to ensure that such meetings only take place in the presence of a third party, who will have the role of overseer (mostly social workers in this case).
If the decisions taken by the parent with custody are contrary to the will of the other parent, these decisions can be brought before the judge for arbitration.
Super exclusive (or reinforced) custody
Super exclusive custody is a sub-category of exclusive custody. It is considered only in exceptional circumstances (Article 337-quater, paragraph 3, of the Civil Code, introduced by Legislative Decree No. 154/2013), when one of the parents is unsuitable for the role he or she should play, due to incapacity or disinterest (material or moral).
Super exclusive custody differs from simple exclusive custody as it entails one aren’t having sole responsibility for the decisions regarding the child, even if it does not entirely relieve the non-custodial parent of his or her parental responsibilities.
It is up to the judge, if necessary, to decide whether or not to pronounce parental disqualification for the person he or she deems unfit for their role.
Custody of children in the case of unmarried couples
In the specific case of unmarried couples who may either be a de facto couple or may have never been a couple, the custody of children follows the same rules as for children born to a married couple. The basic principal of bi-parentship doesn’t change, both having the same rights and parental authority over the child.
Clearly, the child must have a stable home with one of the parents, but even in this the situation is the same as it would be for married parents, the only difference being that use of a judge is optional and that verbally reached agreements are considered sufficient. If the couples do wish to ratify the agreement formally, however, then they are able to apply for shared custody.
Equally, if no such an agreement can be reached between the two parties, they may apply for formal sole custody of the child.
The competent court for this kind of request is not a youth court but a normal court.
“Each parent is responsible for the maintenance of their child, in proportional accordance with their salary.”
In the case of a shared custody it is usual to opt for a form of direct maintenance. The maintenance sums for the offspring are agreed by the parents.
If the parents are unable to come to an agreement, it is the responsibility of the judge to decided whether one or both parents should pay for the maintenance of the child. In this case, the amount must be established, following a number of criteria:
- The actual needs of the child.
- The maintenance of the standard of living which the child experienced when living with both parents.
- The time that the child spends with each of the parents.
- The financial situation of each of the parents
- The economic value of the time that each of the parents spends caring for the child (including domestic tasks)
If the parents do not possess sufficient means to ensure the wellbeing of the child, it falls to the parents’ families to help to provide for the needs of the child, so that they may fulfil their parental obligations. If a parent does not comply with the agreed contribution to maintenance of their child, they will be subject to serious legal consequences.
Jurisdiction in cases concerning custody and maintenance of children of international couples
The question of jurisdiction in cases of separation under international law has been subject to numerous judicial rulings.
A concrete case, for example, concerned the legal separation of an Italian Citizen and a British Citizen, married in Italy and subsequently parents to a son with whom the mother returned with to the UK following her separation from her husband. (SS. UU. Cassazione sent. 17676/2016).
A joint session declared that Italian jurisdiction exists in respect of issues relating to legal separation, and foreign jurisdiction exists in respect of issues relating to the minor child and his or her custody: exclusive jurisdiction to hear claims concerning the child must be devolved on the court of the place where the child is habitually resident, even if such claims are brought jointly with the claim for legal separation of the spouses.
The criterion of habitual residence is also referred to in the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, which applies in respect of signatory States that are not Member States of the European Union and, following Brexit, also in respect of the United Kingdom.
The Court particularly clarifies that in the case that the child is not habitually a resident in the EU Member State where the separation proceedings are taking place (as in the case mentioned) the child’s best interests, together with the criterion of proximity, require that the two legal proceedings be separated and that the court in charge of the first matrimonial proceedings should not also be given jurisdiction to hear claims relating to parental responsibility, if responsibility is not accepted by the agreed spouse and does not correspond to the interests of the minor child.
As regards the child’s habitual residence at the time of the application, which under Article 8 of the Regulation must be given priority in order to establish jurisdiction in matters of parental responsibility, the judges of the Court of Justice have specified, as a general principle, that the place of the child’s concrete and continuous personal life must be considered to be their habitual residence (in accordance with the well-established interpretation of the case-law).
The Family Law Department of Boccadutri international law firm offers legal assistance and support in cases where there is any doubt over the maintenance or custody of children.