In case of separation and divorce, parents often experience misunderstandings or different expectations about child custody. This is probably due to a lack of understanding of the meaning of a sole or of a joint custody. VGS Family Lawyers has a special team, who is exclusively dedicated to child custody matters.
Italian child custody regime is governed by Law no. 54/2006, Law no. 219/2012 and Legislative Decree no. 154/ 2013. These legislative measures have renewed the Civil Code introducing, within the Italian legal system and according to the EU law, the new concept of parental responsibility (responsabilità genitoriale); which has replaced the long-standing parental authority.
In accordance with the Council Regulation (EC) No 2201/2003, the term “parental responsibility” means “all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term includes rights of custody and rights of access“.
Italian child custody law provides two different types of child custody:
Sole Child custody: which grants the full custody to one of the parents. The custodial parent has the right to decide on everything regarding the child’s daily life, to exercise full parental responsibilities. Under this circumstance, it is understandable that non-custodial parent has limited responsibilities;
Joint Child custody: indicates that both parents are entitled to the custody regardless of whether the child lives with one of the them.
Decisions regarding child custody must be taken by the court that, according to the spirit of the law, must always give priority to the implementation of the joint-custody regime.
The fundamental factors that courts have to take into consideration when deciding about child custody are:
- The minor and parents’ mental and physical health, age and sex;
- The emotional bond between the child and the parents;
- The minor’s preference (if he/she’s above the age of 12);
- The parents’ lifestyle;
- The parents’ ability to take care of the child.
In the context of a aparental agreement, where both of them want a joint custody, the judge will just ackowledge and certify such agreement determining the residence and visiting times of the child.
On the contrary, in the context of a lack of agreement between parents, the court will rule on the relevant spheres of action for each parent, maintaining a joint custody regime, where it does not go against the child’s interest.
In accordance with the principles that rule this matter, the underage child has the right to maintain a balanced and continuous relationship with both parents, as well as receiving care, education, physcial and moral assistance from both parents.
It is clear that the joint custody is the privileged arrangement for the custody of children. In fact, both parents must actively participate in the care and education of their children, jointly taking any major decisions.
Civil Code Section 337 quarter affirms that sole custody is only ordered when the joint custody would go against child’s interest. Sole custosy is an exception for the Italian Legal System, not a rule. And, anyway, the non-custodial parent keeps the right and the duty of supervising instruction and education of the child.
VGS Family professionals are able to assist you in order to better protect your parental right and the best interest of your children. The team is composed by a divorce litigator and a criminal lawyer, specialised in Juvenile Law and Minors’ Rights.
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