Placing children with two different family members: can it be done? Here’s what the jurisprudence says.

If a couple separates, could the judge decide to place one child with the mother and one with the father?

Before answering the question, a brief introduction is necessary, since there is often confusion between the custody of children and the placement of the same.

The custody of children in the event of the separation of parents pertains to the exercise of parental responsibility, that is, to the taking of all those decisions relating to the life of the children (education, religious orientation, health, care).

Custody by law, except for proven reasons, must be “shared” between parents, who must take into account the abilities, natural inclinations and aspirations of the children.

The placement of post-separation children, on the other hand, concerns the primary residence of the children at the home of the parent deemed most suitable. The prevailing placement is the most commonly used form in practice since the periodic change of the placement could cause the minor to lose points of reference. However, it is clear that every situation is different, there are many cases of alternate placement that allow children a healthy development anyway.

The prevalent placement with a parent, in most cases, also presupposes a totally shared custody of the child.

Having clarified this, let’s move on to the subject of the question.

The placement of children is a choice that is made by the parents by mutual agreement or by the judge and relates to the habitual residence of the children after separation or divorce.

How to identify the placing parent

But how does the judge decide which parent the children have to live with?

The identification of the collocating parent must take place at the outcome of a prognostic judgment that the judge makes, in the exclusive moral and material interest of the offspring, having regard to the parent’s ability to raise and educate the child and taking into account the family organization up to to the disintegration of the nucleus.

Children can be placed either at the father’s or mother’s residence.

It is undeniable that, in the absence of an agreement and in the absence of particular problems, the mother is generally the parent with whom the minor children are placed. Not only.

Over the years, jurisprudence has repeatedly emphasized, in compliance with the principles expressed also by Article 8 of the ECHR, the need to protect the relationship between brothers and sisters, i.e. the right of brotherhood and sisterhood in the event of the separation of parents, establishing that the brothers and sisters must be placed with the same parent. However, if the minor has reached the age of twelve, or if he has a consolidated capacity for discernment, he can also be heard by the judge on his desire to live mainly with his mother or father.

Furthermore, the choice to divide the siblings presupposes the collaboration of the parents to make them attend and perceive the family atmosphere even after separation. 

How do the judges make decisions on this point?

The Supreme Court also expressed itself on this point with the sentence of 15 July 2021 which established that the custody of two brothers with different family members damages the interests of minors. The bond between sisters or brothers could also represent the greatest effective and stabilizing reference for the minor. For this reason, it is necessary to preserve, in the separations between spouses, the relationship between brothers and sisters, not separating them, unless this highlights the contrary interest of the minor in living together.

In conclusion, to answer the question, the placement of siblings with different parents is very rarely ordered by a judge, except for serious reasons and always with reference to the primary interest of minors.

Therefore, in the opinion of the writer, the result of dividing the brothers can only be achieved with an agreement.

VGS Family Lawyers has a team highly specialised in advising clients in contested and complex cases of child placement and child custody.

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