The mere distance between the homes of the two parents does not represent an obstacle to shared custody. The fact that the father has not paid the child support cannot lead, alone, to a judgment of inadequacy to fulfill his parental role. For exclusive custody, in fact, both the judgment of adequacy of the custodial parent and that of inadequacy of the parent who is to be excluded from the life of the children are relevant.

These are the important clarifications regarding shared and exclusive custody set out by the Italian Supreme Court in a recent judgment of 2022 (attached below).

Factual background

During the separation, the Court orders the father to pay a monthly allowance for the maintenance of children of 200 euros, 50% of the extraordinary expenses, custody of the children to both parents with placement with the mother and the right of the father to visit one of the children every 15 days and in the presence of an educator. The decision, within the terms indicated, is also confirmed on appeal.

In appealing to the Supreme Court, the mother disputes:

• failure by the father to pay the support contribution due for the children;

• failure to rely exclusively on the same, despite the fact that the relevant case law testifies in its favor;

• the apparent reasoning provided by the Court for the decision. The judge of the appeal in fact limited himself to confirming the first instance decision without explaining in detail the reasons for the conclusion reached

Shared custody: the father is not inadequate, distance is not enough

The Supreme Court rejected the appeal.

With the first plea, relating to the non-payment of the allowance, the applicant does not ask that this conduct be examined in order to arrange for the sole custody of the children in her favor. In this way it does not create the conditions for a contradiction on the question. The alleged fact, in any case, is not, by itself, suitable to get a judgment of lack of the man’s parental attitudes.

The second plea is also inadmissible, because the appellant does not indicate either the rule violated by the Court or the jurisprudence it invokes in support of the thesis of exclusive custody in its favor.

It is not true that the Court did not argue the decision by which it confirmed the first instance decision which ordered shared custody. In fact, it should be remembered that exclusive custody can only be arranged if the shared one is prejudicial to the interest of the minor.

The decision of exclusive custody must therefore be supported by two reasons:

• a positive one on the suitability of the custodial parent;

• one in negative on the unfitness or manifest deficiency of the excluded parent.

Finally, the Supreme Court specifies that shared custody is not excluded from the objective distance of the homes of the two parents. In fact, the same affects only the methods and timing of the presence of the minor with each parent.

Finally, the third plea is also inadmissible. The reason for the Court’s decision is in fact clear and understandable. The judge of the appeal in fact decided not to exclude the father from the educational and growth path of the children, in the absence of more serious elements and obstacles, compared to distance alone, to the relationship between father and children.