A. After Divorce
1.a) Does your legal system provide for the possibility of joint custody of the children or must the custody be entrusted to one of the parents?
Divorce has been introduced in Italy by Act 898, 1 December 1970, which originally didn't foresee any possibility of joint custody. This law has been amended in 1987 (Act 74, 6 March 1987), when italian judges have been permitted to entrust custody to both parents, either jointly or alternatively, if it can be in the interest of the child, regarding their age (see article 6, subsection 2, Act 898/70, amended by article 11, Act 74/87).
b) Can the custody be entrusted to anyone other
than a parent?
Article 6, subsection 8, Act 898/70, amended by article 11, Act 74/87, permits the court - in case of temporary impossibility to entrust custody to one of the parents - to apply "placement in a family". This measure is aimed at children who temporarily lack an appropriate family environment; it is a temporary decision, (unlike adoption), which does not concern parental rights and can be ordered in favour of families, singles, family-like communities (see Act 184/83, articles 2-4).
2.a) What circumstances shall the court consider
when deciding? The interest of the children? Any presumption for one of
The one and only circumstance the court must consider when deciding is "the moral and material interest of the child" (article 6, subsection 2, Act 898/70), without any kind of presumption for one of the parents.
b) What effect will an agreement of the parents
This is a matter of inalienable rights. Consequently no agreement between the parents is possible. Anyway article 8, Act 74/87, amending article 4 (subsection 13), Act 898/70, has provided for a quite new procedure, when parents agree on the conditions which are going to regulate their divorce (custody of the children included). In that case the parents have to present the court a joint petition for divorce. If the judge thinks the arranged terms are convenient for the children, it pronounces a judgement in accordance with the agreement. Otherwise, the court compells the parties to follow the ordinary divorce proceeding, which ends with a judgment pronounced, if necessary, even against the terms of the parents' agreement.
c) Will the court hear the child? If such a hearing
is held, to what extent will the opinion of the child be regarded?
No legal provision compels the judge to hear the child. Article 4, subsection 8 and article 6, subsection 9, Act 898/70 provide for such a hearing only "if it is absolutely necessary, with regard to their age". As a consequence, this decision is left to the judge. If such a hearing is held, the opinion of the child can always be weighed freely.
It must be added that Act 176, 27 May 1991, has ratified and executed in Italy the international convention relating to the rights of children, which has been signed in New York on 20 November 1989. Article 12, subsection 2, of this convention gives "the child the possibility to be heard in any judicial or administrative procedure regarding him, either directly or through a representative or through an appropriate agency, compatibly with the procedural laws of each country".
d) Will the court ask for the opinion of any public
authority, dealing with the welfare of children?
The court can take the advice of a public welfare service agency, which is normally estabilished in any italian town community. Generally this happens when parents don't agree on the matter of who shall have custody of the children, or when the judge is not sure that the solution proposed by the parents is convenient for the children. In that case the court orders the above mentioned local authority to conduct an inquiry into the situation of the children.
3. Can a court decision on the custody of children
which has entered into force be changed? If so, on whose application and
on what grounds?
The court decision on the custody of children which has entered into force can always be changed (such decisions are defined as "rebus sic stantibus") provided that, after the decision, "just motives" occur. Both parents and the public prosecutor (who is a necessary part of the divorce proceeding) can apply for such a change.
4. a) What are the rights of the parent having
The parent having custody has normally the sole exercise of parental rights, but the court can decide differently (see article 6, subsection 4, Act 898/70).
b) What influence does the other parent (the parents)
have on the children's residence, education, economical circumstances etc?
The most important decisions concerning the children are taken jointly by both parents. The parent to whom custody is not awarded has the right and the duty to oversee the way the other parent supports and educates the children. It has also the right to apply to the judge, when he thinks that the other parent has taken a prejudicial decision for the children.
c) What rules are applied if there is a joint
The italian law permits the judge to entrust custody jointly to both parents (see the answer to question A 1.a), but it doesn't provide for any rule having regard to that case. As a consequence, legal rules regarding joint custody must necessarily be the same as those regulating parental authority over children of not divorced parents (see articles 315 f. of the Italian Civil Code). Anyway this measure is seldom adopted.
5. What rules does your legal system provide in
order to safeguard the right of access to the child for the parent who
does not have custody?
This matter is entirely left to the judge's opinion (article 6, subsection 3, Act 898/70).
6. Can the right of access be restrained or even
The right of access to the child can be limited or even excluded if the judge thinks that the exercise of this right can be prejudicial to the child.
7. Can a court decision on the right of access
which has entered into force be changed? If so, on whose application and
on what grounds?
See the answer to A 3.
8. Which court has jurisdiction over questions
of custody and right of access (when they are not dealt with in the divorce
Ordinary courts pronouncing divorce have always jurisdiction over questions of custody and right of access. The italian law says that this decision must be necessarily taken together with the decision over divorce (article 6, subsection 2, Act 898/70). Ordinary courts (and not Juvenile Courts) have jurisdiction even in case of application for the change of such decisions regarding custody of the children and right of access (see the "Corte di Cassazione" ruling n. 1551, 2 March 1983).
9. a) Which court has jurisdiction over questions
of custody and right of access when the parents are of different nationalities?
The italian Code of Civil Procedure, article 4, provides for the jurisdiction of the italian judge relating to foreigners, when the defendant has taken its habitual residence or its domicile in Italy, or if he has accepted the italian jurisdiction, or if a situation of reciprocity exists (i.e. the same jurisdictional conditions and requirements exist in the foreign State).
b) Which law is applicable?
The Italian Civil Code (preliminary provisions, article 20) provided that the relationships between parents and children be regulated by the law of the nationality of the father (or by the law of the nationality of the mother, in the case only motherhood had been acknowledged or judicially declared). This provision has been abrogated by a "Corte Costituzionale" ruling (n. 477, 10 December 1987). As a consequence the greatest uncertainty reigns as for the interpretation. According to certain scholars it would be necessary to apply the law of the habitual common residence of the parties (see article 29 preliminary provisions to the Italian Civil Code). According to other scholars the judge should apply only those rules which are common to both parents. According to other scholars finally, the italian judge ought to apply the italian law ("lex fori").
10. What particular difficulties do arise when the parents are of different nationalities?
The main problem has to do with the risk that a foreign parent who gets custody of the child or even simply access to him could take advantage of this circumstance in order to bring the child abroad, so virtually preventing the other parent to see him. Another obstacle regards the execution abroad of judicial orders which require the making of periodical payments by one parent to the other for the benefit of the child. In that case it will be necessary to apply the international convention relating to alimony signed in The Hague on 2 October 1973.
11. How can a court order on custody or right
of access be executed if the parents do not voluntarily comply with it?
This matter hasn't been regulated by any specific law. According to a "Corte di Cassazione" ruling (n. 5374, 7 December 1980) articles 612 f. of the Italian Civil Procedure Code should apply. These provisions regard the execution of the obligations to do or not to do something. This means that the "pretore" (judge of first instance) of the place of habitual residence of the child should specify in which way the bailiff has to execute the court order.
12. What rules concerning alimony to children
after the parents divorce does your legal system provide?
According to article 6, subsection 3, Act 898/70, the court must estabilish "the ways and the measures" through which the parent to whom custody is not awarded has to contribute to the child's support and education. Normally the court orders him to pay each month a certain amount of money to the other parent.
B. After Separation (Séparation de Corps)
In which respect are the answers given to the questions A 1 - 12 applicable after the separation of married parents and in which respects do they differ?
1.a)The legal statute of children after separation of their parents is regulated by article 155 of the Italian Civil Code, which doesn't provide for a joint custody; it only says that the judge declares what parent shall be awarded custody of the children. Nevertheless it is possible to apply the above mentioned article 6, subsection 2, relating to divorce (see the "Corte di Cassazione ruling n. 4936, 4 May 1991).
1.b)Yes, but only if "serious grounds" exist (see article 155, subsection 6, of the Italian Civil Code).
2.a)The one and only circumstance judges must take in account while deciding over custody is "the moral and material interest of the child" (see article 155, subsection 1, of Italian Civil Code), without any presumption for one parent.
2.b)Article 158 of the Italian Civil Code provides that a separation by mutual consent must be confirmed by the court. The court can refuse this confirmation, when it thinks the agreement is not convenient for the children.
All the answers to questions A 2.c) to 12. are applicable after the separation of married parents without any difference.
C. After Annulment
In which respects are the answers given to the questions A 1 - 12 applicable after the annulment of a marriage and in which respects do they differ?
According to article 129, subsection 2, of the Italian Civil Code, article 155 of the same Code should apply to the orders issued by the judge who annuls the marriage (i.e. the ordinary court). This means that all the rules relating to the legal statute of the child of separated parents are applicable to parents whose marriage has been annulled (see under B).
D. After Separation of Parents Cohabiting without
Being Married to Each Other?
What rules does your legal system provide as to the questions under 1 - 12 when parents cohabiting without being married to another separate?
These are obviously illegitimate children. According to article 317-bis of the Italian Civil Code, if both parents have recognized the child and they cohabit together, then all the rules relating to the exercise of parental rights over legitimate children should apply. In case of separation of cohabiting partners the Juvenile Court must decide what parent shall have the custody of the child and consequently the parental rights over him. The other parent has only the right to oversee the education and the life conditions of the child.
Unfortunately the law does not permit the Juvenile Court to impose periodical payments to the parent to whom custody is not awarded. So, the parent having the custody of the child is obliged to sue him in a ordinary court in order to obtain alimony for the benefit of the child.
It can be finally mentioned a "Corte Costituzionale" ruling (n. 404, 7 April 1988) that, in case of separation of cohabitating partners has recognized the right of the parent who has the custody of the child to succede as a tenant in the lease of the house in which the "de facto" family cohabited before separation. Originally, this rule referred only to the separation of married parents (see article 6, Act 392, 27 July 1978).
Dr. Giacomo OBERTO
Civil Court of Turin