Parents cannot negotiate the joint custody of children

The Civil Court of Varese has rejected an application for legal separation in which the spouses had entered into a mutual agreement to assign the custody of the minor child solely to the mother. The court made clear that such agreement was contrary to the spirit of the law 54/2006, which has introduced in Italy the fundamental principle of the joint custody of children upon breakage of marriage. The same law had clearly  provided that all measures regarding children shall be taken by judges “only with respect to the moral and material interest of them.”

Before this law came into force, in case of legal separation or divorce judges could assign the custody of children solely to one parent (generally the mother), while allowing the other parent a limited right to visit them regularly. The joint custody was an important innovation, introduced in order not to deprive children of the continuity of the relationship with both parents. It is also an effort to avoid worsening the traumatic emotional shock minors experience as a consequence of the division of the family, a situation that is by itself capable of producing many negative consequences on the personality and character of youngsters.

Within this new legal framework, the primary interest of the law is now primarily set to protect the children, that have now the right to live in a way as painless as possible the consequences of the decisions taken by adults. Therefore, the art. 155 of the Civil code now expressly provides that even in the case of legal separation, minor children have the right to maintain a balanced and continuous relationship with both parents and to receive care, education and instruction and the right to maintain meaningful connections with the ascending and relatives of each parent. The same rules are applicable in case of divorce.

This principles can be derogated only if the joint custody is detrimental to the welfare of the children and the parents cannot decide otherwise for personal convenience or in exchange for economic benefits. On this point, the Civil court of Messina had already declared, in its judgment of 23 January 2011, that judges are not obliged to approve the agreements of the parents if they are contrary to the interests of the children.

The Supreme Court of Cassation has made clear that all exceptions to the general rule of the joint custody shall be evaluated by judges case by case, and should be allowed only in three cases: a) when one of the parents is undoubtedly and seriously unsuitable to provide an education to the children, or b) has an “abnormal way of life” which appears to be dangerous to the children, or c) when there is a categorical refusal of the children to have a relationship with a parent. The existence of a disagreement between the parents is not relevant, unless the conflict is so serious to alter and affect the balanced growth of the children.