Children well-being after divorce or separation: The new sole custody
In the event joint physical custody is against minor’s interest, the sole or exclusive sole custody represents the only alternative.
Generally speaking, Italian Family law aims to ensure the minor a continuing and effective relationship with both parents. However, in the event shared custody is against minor’s interest, he/she will be subjected to sole custody regime. In such case, both parents maintain their legal custody over the minor.
In order to apply the sole custody regime, the measure shall be motivated. In particular, the provision shall clarify the eligibility of the parent with custody while highlighting reasons of other parent unsuitability. For instance, the parent who fail to pay children support contribution and who did not exercise his/her visiting rights might not be eligible for the shared custody regime. In fact, the non-exercise of visiting rights is highly symptomatic of the ineligibility of non-custodial parent to take those responsibilities that arise from a shared custodial regime.
The joint parental custody is the general rule that govern minor custody. On the contrary, sole custody is the exemption. Art. 337 quarter Civil Code – regardless the minor custody regime – states that both parents are entitled to participate into the most relevant decision of the minors. Moreover, the non-custodial parent is entitled to supervise over minor education and well-being.