Minors under 12 must be listened to find out if they want to be with mum or dad

With the ordinance n. 7262 of March 4, 2022 the Italian Supreme Court ruled that failure to listen to the under-12-year-old child about the parent he prefers to be with constitutes a violation of the cross-examination. In the context of the custody and placement judgment, the child has the right to be heard, otherwise, in the absence of a ruling without a valid reason, a violation of the fundamental procedural principle of the adversarial procedure emerges.

The child’s right to be heard

The provision of the Supreme Court is based on the assumption that the minor has interests other than those of the parents, and sometimes opposing ones, in the judicial proceedings in which he is involved. The minor, therefore, constitutes a substantial party in such judgments, as in the case of a procedure on custody and on the right of access. In the course of these judgments, the protection of the interest of the subject not yet of age is achieved through the provision of listening, the omission of which, in the absence of an express motivation for the lack of discernment, constitutes a violation of the cross-examination.

The formulation of the prognostic judgment on the parent to whom to place the minor

The first civil section of the Supreme Court started from the principle according to which the judge of separation and divorce must comply with the primary criterion of the exclusive moral and material interest of the child, in the matter of custody of minors (art.337 bis of the civil code . and, in the case of divorce, by art.6 of law no. 898 of 1 December 1970). The judge would be required to privilege the parent who seems best suited to minimize the damage caused by the break-up of the family unit and to ensure the optimal development of the minor’s personality. The identification of the parent responding to these characteristics is carried out on the basis of a prognostic judgment relating to the ability of the mother or the father to take care of the growth and education of the child, as a single parent. Therefore, in the face of the judge’s decision to derogate from the ordinary regime of shared custody, the result of respect for the right of two-parenting, the judge must formulate the prognostic judgment and listen to the minor on which parent he prefers to be with.