18 August, 2017

Assignment of children of separated parents in Italy – Shared custody

In a case where the parents are separated or divorced, the assignment of the children residents in Italy is granted to both of them – shared custody (affidamento condiviso) in order to guarantee the respect of the principle of “double-parenthood” i.e. the right of the minor to have a balanced situation with both mother and father. When the parents are foreigners, or one of the two got married with an Italian citizen, or their countries of origin are different, they have to evaluate, with the legal advice of an Italian qualified lawyer specialized in family law also internationally, what is the applicable law to the concrete case in case they have children. To proceed like that, they may be advised with respect to a comparison between the foreign applicable law and the Italian law and the respective execution. As a general rule, indeed, the Court may decide to grant the shared custody even if parents live very far one from another, for example one in Italy and one in a foreign country.


The difference between assignment and placement pursuant to Italian law

In the common language, the concepts of “assignment/custody” (affidamento) and “placement” (collocazione) are often confused and wrongly used. Yet, between the two concepts, there is a material difference. “Assignment/custody” means to identify the parent who shall carry out the responsibility on children, making decisions both concerning day-by-day decisions and concerning the most important decisions for children’s life, with an exclusive involvement of the parent in the life of the child and in the duty of raising the child in accordance with his psycho-physic development. Vice versa, the “placement” identifies only the parent with whom the child lives mainly most of the time.

During the most recent years, the Italian Courts are expressing with a clear preponderance in favour of a shared custody together with an exclusive placement in one of the two parents who, statistically, is more often the mother. It means that the children will go on usually living in the family house with the parent granted with placement, and that the other parent shall have the right and the obligation to contribute to their education, sharing with the other spouse the responsibilities and the obligations connected to their development, contributing to their sustenance (mantenimento) but also to the choices concerning their lives.


The necessary terms and conditions to obtain the shared custody in Italy

The shared custody distinguishes itself, therefore, not for the exact sharing of the time that the minor spends with one or another parent, but for the sharing of the educational and didactic choices and for the equal common participation to the child’s life.

Only if the assignment to one parent can concretely and actually damage the child, the chosen option will be the exclusive assignment to the other parent.

However, these are extreme cases. Just to name a few examples, a huge conflict should arise out between the minor and a parent or a child abuse situation or a drug addiction situation of the parent. The simple dispute situation between spouses, instead, do not constitute enough reason to obstruct the shared custody.

Shared custody may be requested, by means of the legal advice of an Italian qualified lawyer specialized in family law, both during a separation (separazione) or divorce (divorzio) legal proceeding (consensually or mutually) and during a stand-alone proceeding in case the parents have already divorced in a foreign country and they are both resident in Italy with their children.

Marzorati Law Firm is specialised in family law, also internationally, and its lawyers usually deal with separations, divorces, child support and family support. To advise all its clients all over Italy and worldwide, Marzorati Law Firm has also developed a network, made also of at least a barrister/solicitor, an attorney-at-law, an abogado, and an avocat à la cour, all qualified in their respective country of practice.

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