Supreme Court ruling: gay parents can legitimately obtain the sole custody of children

Synopsis: According to a law which has been recently passed, flat residential rules (condominium regulations) in Italy can no longer forbid to keep ‘domestic animals’ in houses.

Originally published on the Italian Law Journal (permalink).

On January 11, 2013 the Supreme Court of Cassation has ruled that a gay mother can legitimately be assigned the sole custody (both physical and legal) of her child, because her sexual orientation is irrelevant for the well-being, development and education of the kid. In particular, the pronouncement has rejected the plea of a Muslim father, who had been denied the joint custody of his child, which had been exclusively assigned to the mother.

The controversy had arisen because the woman, after separating from the man, had built a stable relationship with another woman. This had caused the fierce anger of her former husband, whom ended up assaulting the partner of his ex wife, both verbally and physically. The boy was present when this aggression took place and was heavily traumatized by the brutal behaviour of the father, considered that he was already used to look at his mother’s partner as a member of his family. After this episode, the judges assigned the child solely to the mother, excluding the father from any right to visit him.

The Muslim had appealed this decision, soliciting the Court of Appeal to assign to him the custody of the child, on the grounds that in his home culture homosexuality is forbidden, being considered as a major offence. Thus, the violent behaviour had to be justified by the cultural heritage of the man. The Court of Appeal had confirmed the decision of the Court of First Instance.

The Muslim had appealed the decision to the Court of Cassation, complaining that: 1) the judgment had not sufficiently motivated why the man was denied the joint custody of the child (which the law considers the normality); 2) the Court had not considered the real parental attitudes of the mother, considered the family context in which the minor was living and the impacts on his growth and education which originated from the fact that his mother was in a relationship and living with another woman.

The Supreme Court of Cassation rejected the appeal, for the following reasons:

a) Firstly, the decision to assign the custody solely to the mother was adequately motivated as a result of the aggressive behaviour of his father and other circumstances which had been correctly pondered by the Court of first Instance.
b) Secondly, the assertion that the homosexual relationship of the mother was not adequate, in terms of education, to ensure the balanced development of the child in relation to the rights of the family «as a natural society founded on marriage» (as stated in art. 29 of the Constitution) and the fundamental right of the child to be educated in the principles of culture and religion by both parents, was a mere prejudice of the father. Indeed, the alleged circumstance that a child growing up in a homosexual family should be in trouble and marginalized shall be demonstrated and cannot be considered as unquestionable.

It is important to notice that some months ago, the Supreme Court had already declared that — even though homosexual marriages celebrated outside Italy cannot be registered in the country — this doesn’t mean that those relationships should be considered as inexistent or void. Otherwise, this limit depends exclusively on their incapability to produce legal effects in the Italian jurisdiction (Sent. 4184/2012). In any case, the Court of Cassation made clear that gay couples have a full right to build up a family and that the pursuing of this right cannot be impeded by anyone.

Originally published on the Italian Law Journal (permalink).