According to the Law No.54 of 2006, Italy has amended the child custody regime implementing the shared custody. In this way, the Law recognised the paramount importance of both parents’ presence in children life. Important to highlight, such recognition took place in the sole interest of the child. In the context of shared custody regime, both spouses exercise parental responsibility. However, where the Judge considers a major benefit for the child, it can decide that parental responsibility may be exercised separately. In addition, in case of consensual separation, the Judge shall take into consideration spouses’ agreement only if it is not in contrast with the best interest of the child.
In the event the shared custody regime is in contrast with the best interest of the child, the Judge will normally proceed with the sole custody regime. In this case, parental responsibility is still shared but according to different criteria. When a sole custody regime is implemented, the Judge assessed that one of the spouses is not suitable to assume the parent role. Within this context, the burden of proof is transferred on one of the spouse that shall provide evidences that other spouse is not suitable for assuming parental responsibility. The existing and possible conflicts between the spouses does not constitute an automatic requirement for the sole custody regime. However, In the event the conflict is harsh and deep that endanger the exercise of parental responsibility, the Judge would normally opt for a sole custody approach.
Even though the shared custody regime entails a shared exercise of parental responsibility, this does not mean that there will not be a custody prevalence over one of the spouses. In fact, according to best interest of the child, it is important to allow children to live in one single familiar environment.
According the Art. 315-bis of Civil Code, the twelve years old minor has the right to be consulted in relation to all legal decisions that involve them. However, if minor’s requests are detrimental to his/her own best interest, the judge has the power disregard minor’s instances.
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