The Law Firm Cecatiello pays close attention to the interests and needs of children in separation procedures.
The law n. 54 / 2006 has introduced the principle of big-parenting and shared custody of children.
Children have the right to maintain relationships with both parents regardless of their personal relationships.
The children, in case of separation, must be entrusted jointly to both parents while the exclusive assignment to one or the other of the parents is the exception, exception that must be justified by serious and valid reasons that unfortunately more and more often occur. The judge can entrust the children to only one of the parents only when the shared custody is not possible and this is in the interest of the children.
Spouses, even if separated, must both commit themselves directly to the education and training of their children.
Article. 155, paragraph 1, cc, expressly provides that the child also in case of personal separation of the parents has the right to maintain a balanced and continuous relationship with each of them, to receive care, education and education from both and to maintain meaningful relationships with the ascendants and relatives of each parental branch. To this end, the Court, in pronouncing the personal separation of the spouses adopts the provisions relating to the children with exclusive reference to the moral and material interest of the same and assesses the possibility that the minor children remain entrusted to both parents or establishes to which of they are entrusted to the children, and determines the times and methods of their presence with each parent (Article 155, paragraph 2, cc). The principle of double-entitlement determines the subjective right of the child to have a significant relationship with the father and mother, regardless of the prevalent placement of the child as established by the Court of Milan, Sec. IX, 5 March 2009.
The assignment of the minor to both parents results in the exercise of parental responsibility by both parents and sharing of the most important decisions.
The salient characteristic of shared custody lies not so much in the duality of residence and in the parity of time that the minor spends with one parent or another, but rather in the equal sharing of the parental role (Trib. Messina 18.7.2006).
The law now provides that even in the consensual separation proceedings the parties are provided with a lawyer.
It is therefore up to the lawyer to explain to the parties the importance of the parental role and the need to find a meeting point also in the delicate phase of separation in the interests of the children.
The assignment of the minor to both parents takes place with privileged placement at one of them when an alternate placement could constitute a prejudice for the child.
Each of the parents can appeal to the Court to change the measures taken by the judge regarding the custody of the children on the basis of the discipline prior to the reform in order to obtain shared custody and this is expressly provided for by art. 4, paragraph 2, law n. 54 / 2006.
How much does the judge not grant shared custody?
There are many judgments that provide for exclusive custody when the total non-compliance with the obligation to maintain children and the discontinuous exercise of the right to visit are among the other, among the other Cassation 17.12.2009, n. 26587.
Another reason for exclusive custody is represented by the objective distance existing between the places of residence of the parents (Cass., Ord., 2.12.2010, No. 24526) or the particular conflict of parents. In the latter case, not infrequently, the Court of Milan, like other Italian courts, arranges the assignment of children to social services and, in the most serious cases, placement in subjects other than parents.
In short, even during the separation, even in times of greater conflict, spouses must remember, if they are parents, to find an agreement at least for children who must not in any way become victims of separation.
THE TRANSFER ABROAD OF THE SEPARATE SPELL WITH THE PROLE
Often, after the separation, it happens that one of the spouses wishes to transfer his residence abroad.
When the spouses have not had children together, the transfer abroad is possible and can not be prevented by the spouse as it is a manifestation of their constitutionally guaranteed personal freedom.
In order to avoid problems, it is always advisable to provide for a clause in the agreement of consensual separation agreement with which the spouses grant mutual consent for the issue of the respective passports undertaking to carry out all the activities that may be required by the competent authorities.
Problems can arise when children are born from the marriage union.
In this case the right of the spouse to leave the Italian borders clashes with the right of the other spouse to not see prejudices in relationships with the children and the frequency of meeting with them.
It is necessary to make a distinction between when the offspring is in exclusive custody of one of the spouses or when there is joint custody.
Exclusive custody of one of the spouses
It is necessary to distinguish whether the transfer of residence regards the custodial spouse or the other parent holder of the right of access.
a) The transfer of the custodial spouse
The custodial spouse has the right to move abroad even if it has to guarantee the contacts and relationships of the offspring with the non-custodial spouse.
The jurisprudence recognizes as legitimate the exercise of the right of the assignee to establish his residence abroad, while there is a weakened protection of the right of access of the non-custodial parent who can not claim the immediate return of the minor in the territory of the State and consequently has no right to prevent the other parent from bringing the child abroad with him to establish his habitual residence here. The non-custodial spouse can only claim that the effective exercise of the right of access is guaranteed using the procedure provided for by the Hague Convention, especially by soliciting the Central Authority (Article 21 Conv. Aja on the civil effects of international child abduction of the 25 October 1980).
It is advisable that the transfer abroad of the custodial parent takes place following an agreement of both parents, or, if this is not possible, that, at least, the custodial spouse who transfers will give notice to the other before of the transfer.
b) The transfer of the non-custodial spouse.
In the case in which to move abroad with the offspring is the non-custodial parent and this happens in the absence of any agreement, there is the so-called international child abduction.
The custodial parent can apply to the Court of the habitual residence of the minor in order to obtain assistance to ensure the return of the child (article 8 paragraph 1 Conv. Aja on the civil effects of the international child abduction of 25 October 1980).
In this case, many doubts arise about the same feasibility of the transfer abroad of one of the spouses.
This is because, to the evidence, both spouses are "custodians" of the minor, and both have the power to decide on the place of residence of the minor.
A part of the jurisprudence considers that the transfer abroad does not conflict with the shared custody regimen and on the request of one of the parents to change the custody assignment has been established that the distance of the parents is not in itself an obstacle to the sharing of parental responsibility and therefore the shared trust has been confirmed.
A second orientation, on the contrary, affirms that the objective distance of the children is an obstacle to the shared custody regime as an indication of the evident lack or educational inability of the parent who moves. In several cases, the transfer of the spouse abroad with the offspring against the will of the other was a reason to revoke the shared custody and exclusive custody of the other spouse.
In the light of the foregoing, in the event of shared custody it is in any case preferable to have a prior agreement of the spouses or the ruling of the Tribunal through the procedure for amending the conditions of separation or divorce.
Another case is that of the placement of children in the case of unmarried parents.
Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.