Super exclusive custody to the mother victim of domestic violence: criminal filing irrelevant – Cassation no. 7409/2025

The Court of Cassation, with order no. 7409 of 20 March 2025, affirmed a fundamental principle on the subject of parental responsibility and domestic violence: the civil judge can order super exclusive custody to one parent, even in the absence of a criminal conviction of the other, if violent behavior or behavior that is harmful to the psycho-emotional balance of the children is ascertained, even if the complaints have been archived in criminal proceedings.

A ruling perfectly consistent with the objectives of the Istanbul Convention and with the principles of the Cartabia reform regarding the protection of vulnerable victims and the protection of minors.

The concrete case: super exclusive custody following aggressive conduct

The case concerned a mother of three children, who – after the end of cohabitation with her partner – had left the family home and turned to an anti-violence center, reporting aggressive behavior by her ex-partner. The investigations of the Social Services and the listening of the minors during the technical consultancy confirmed a family context with high conflict, characterized by episodes of witnessed violence.

In the first instance, the Court of Castrovillari ordered the super exclusive custody of the minors to the mother, with a financial contribution from the father. The Court of Appeal confirmed the decision, despite the archiving of the criminal proceedings for the reported facts, highlighting the dangerousness of the father's behavior in light of the civil findings.

Cassation: domestic violence is relevant in civil proceedings even without a criminal conviction

In rejecting the father's appeal, the Court of Cassation – Civil Section I clarifies that:

The declaration of super exclusive custody is based on independent assessments by the civil judge, different from those of the criminal jurisdiction.

Witnessing violence is a crucial element: if children witness episodes of aggression, even psychological or verbal, the best interests of the minor prevail over any other consideration.

Even non-criminally relevant conduct can constitute a manifestation of parental inadequacy. This is the case, for example, of damaging the front door, threats or verbal aggression in protected environments such as family counseling centers.

Criminal filing: why it is not decisive in civil proceedings

A particularly relevant point of order no. 7409/2025 concerns the value of criminal filing. The Court states that filing a criminal complaint does not exclude the relevance of the fact in civil proceedings, especially when concrete elements emerge of:

Violent or threatening behavior within the family,

Failure to comply with the maintenance obligation,

Controlling or alienating behaviors towards children,

Repeated hostility towards the other parent even in a protected environment.

In such circumstances, the civil judge is not bound by archiving, but must proceed to an independent assessment based on the evidence acquired in the trial on the merits.

Witnessing Violence and the Minor's Right to a Healthy Environment

The Court of Cassation reaffirms that the minor has the right to grow up in a balanced and tension-free emotional context. The parent who, through his or her conduct, induces the child to witness episodes of violence, violates his or her fundamental rights and compromises the possibility of building healthy relationships.

In these cases, the civil judge has the duty to:

protect the minor from any form of repetition of violence,

to provide protective measures consistent with the best interests of the child, even in the absence of formally ascertained criminal liability.

A principle in line with the Istanbul Convention

The Istanbul Convention, ratified by Italy with Law 77/2013, requires States to evaluate episodes of domestic violence in the regulation of parental responsibility, even when they do not result in a criminal conviction.

Ordinance no. 7409/2025 translates this principle into domestic law, placing the interest of the minor as the prevailing and non-negotiable criterion.

Conclusions: the civil judge can and must protect the minor, even beyond criminal law

With this decision, the Court of Cassation confirms that, in the matter of custody of minors, the protection of the child prevails over the possible criminal outcome of the proceedings. The super exclusive custody to the mother victim of violence is justified by an overall picture of parental inadequacy, which does not necessarily require a conviction or a final sentence.

The intervention of the civil judge is not subordinate to the criminal one, but responds to autonomous logics based on the urgency of guaranteeing a safe, stable and harmonious family environment for minors.