The Law Firm Cecatiello pays close attention to the interests and needs of children in separation procedures.
Law no. 54/2006 introduced the principle of two-parenting and shared custody of children.
Children have the right to maintain relationships with both parents regardless of their personal relationships.
In the event of separation, children must be jointly entrusted to both parents while exclusive custody to one or the other of the parents is the exception, an exception that must be justified by serious and valid reasons which unfortunately more and more often occur. The judge can entrust the children to only one of the parents only when shared custody is not possible and this precisely in the interest of the children.
The spouses, even if separated, must both commit themselves directly to the education and training of their children.
The art. 155, paragraph 1, of the Italian Civil Code, expressly provides that the minor child, even in the 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 instruction from both and to maintain meaningful relationships with the ancestors and with the relatives of each parental branch. To this end, the Court, in pronouncing the personal separation of the spouses, adopts the measures relating to the children with exclusive reference to the moral and material interest of the same and evaluates the possibility that the minor children remain in the care of both parents or establishes which of they the children are entrusted, it also determines the times and methods of their presence with each parent (Article 155, paragraph 2, of the Italian Civil Code). The principle of two-parenting determines the child's subjective right to have a meaningful relationship with the father and mother, regardless of the prevailing placement of the child as established by the Court of Milan, Sec. IX, March 5, 2009.
The custody of the minor to both parents results in the exercise of parental responsibility by both parents and a sharing of the most important decisions.
The salient feature of shared custody lies not so much in the duality of residence and in the parity of times that the minor spends with one or the other parent, but rather in the equal sharing of the parental role (Trib. Messina 18.7.2006) .
The law now provides that even in the proceedings of consensual separation the parties are equipped 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 even in the delicate phase of separation in the interest of the children.
The custody of the minor to both parents takes place with privileged placement with one of them when an alternate placement could constitute a prejudice for the minor himself.
Each of the parents can appeal to the Court to modify the measures taken by the judge regarding the custody of 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-fulfillment of the obligation to support children and the discontinuous exercise of the right to visit is recognized, among 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, n. 24526) or the particular conflict of the parents. In the latter case, not infrequently, the Court of Milan, like other Italian courts, orders the custody of children to social services and, in the most serious cases, placement with subjects other than their 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 SPOUSE WITH THE OFFSPRING
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.
To avoid problems, it is always advisable that in the context of the consensual separation agreement there is a clause with which the spouses grant each other mutual consent for the issue of their respective passports, undertaking to carry out all those activities that may be requested 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.
A distinction must be made 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 foster spouse has the right to move abroad even if he must guarantee the contacts and relationships of the offspring with the non-custodial spouse.
In fact, the jurisprudence recognizes as legitimate the exercise of the right of the foster to establish his residence abroad, while there is a weakened protection of the right of visit of the non-custodial parent who cannot demand the immediate return of the minor to the territory of the State. , and consequently has no right to prevent the other parent from taking the minor 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, in particular by soliciting the Central Authority (art.21 Hague Conv on the civil effects of international child abduction of 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 event that the non-custodial parent moves abroad with the offspring and this happens in the absence of any and all agreement, there is the so-called international abduction of minors.
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.
Part of the jurisprudence considers that the transfer abroad does not conflict with the shared custody regime and on the request of one of the parents to change the custody from shared it has been established that the distance of the parents does not in itself constitute an obstacle to sharing parental responsibility and therefore shared custody was 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 inadequacy of the moving parent. In several cases, the transfer abroad of the spouse with the offspring against the will of the other was a reason for revocation of shared custody and exclusive custody to the other spouse.
In light of the foregoing, in the case of shared custody, a prior agreement of the spouses or the ruling of the Court through the procedure for changing the conditions of separation or divorce is in any case preferable.
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.