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Parental responsibility - Italy

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TABLE OF CONTENTS

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility? 1.
2. As a general rule, who has the parental responsibility over a child? 2.
3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place? 3.
4. If the parents divorce or split up, how is the question of parental responsibility determined for the future? 4.
5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding? 5.
6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court? 6.
7. If the parents go to court, what issues can the judge decide upon relating to the child? 7.
8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent? 8.
9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice? 9.
10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application? 10.
11. Which procedure applies in these cases? Is an emergency procedure available? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision on parental responsibility? 13.
14. In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies? 14.
15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in Italy? 15.
16. To which court should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases? 16.
17. Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in Italy or are of different nationality? 17.

 

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

Parental responsibility means all the rights and obligations which the law confers on parents with regard to a child that must be exercised and fulfilled solely in the interests of the child.

Parents responsible for their children must take decisions relating to the child's welfare, upbringing and education. They are the legal representatives of the child or unborn child, with the power to negotiate and represent the child in court. They are responsible for managing the minor's ordinary financial affairs, although in extraordinary cases the court of guardianship may order otherwise. Unless the law provides otherwise, they have real rights of limited duration with regard to the child's property.

However, parental responsibilities include the maintenance, upbringing and education of their offspring.

2. As a general rule, who has the parental responsibility over a child?

Both parents have parental responsibility and must exercise it jointly and in agreement until the child comes of age or is emancipated. Where parents disagree on matters of particular importance, either parent may apply to the Family Court, which will assign responsibility to the parent deemed best equipped to safeguard the child's interests in the case at issue.

In the case of natural filiation, the parents who recognised the child and are living together are responsible for the child. Where they do not live together, responsibility lies with the parent with whom the child is living or, where the child lives with neither of them, with the parent who first recognised the child.

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In any event, the parent that does not have responsibility retains the right to supervise the child's upbringing, education and living conditions.

3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

Where both parents are dead or cannot fulfil their responsibilities for some other reason, the court in the jurisdiction where the child has its interests appoints a guardian.

Where the parents do not exercise their rights and fail to fulfil their obligations, their conduct is taken into account when assessing whether the responsibility should be withdrawn or the child should be adopted on the grounds that it has been abandoned. Such measures are ordered before a guardian is appointed, unless a provisional appointment has been made during these proceedings after the parental responsibility has been suspended.

4. If the parents divorce or split up, how is the question of parental responsibility determined for the future?

In cases of legal separation or divorce the court resolves the question of parental responsibility.

Where separation is by mutual consent or the couple have filed for divorce jointly, the court examines the child's situation when issuing the separation or divorce order.

The couple may apply for the child's situation to be reviewed at any time, and the review is conducted on the basis of the rebus sic stantibus principle.

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5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

In the case of legal separation or divorce, the question of parental responsibility is addressed in the separation or divorce ruling. The court must take account of any agreement reached by the parties but is not bound thereby. It may adopt different measures based on its own findings or in response to an application by one of the parents (cf. section 155 of the Code of Civil Procedure and section 6 of Act No 1970/898).

Where separation is by mutual consent, where the parents reach an agreement on custody and maintenance that is not in the child's interests, the court explains what changes are needed, and if the solution is not acceptable, it may reject the agreement when delivering its ruling (cf. section 158 of the Code of Civil Procedure).

Where both parties have filed for divorce and the court finds that the conditions regarding the children are not in their interests, the case is heard in normal fashion, with the parents appearing before the examining judge (cf. section 4 of Act No 1970/898).

6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

There are no provisions for alternative dispute resolutions to these problems. The courts, and in particular the Family Court, may request assistance from social services, possibly in the form of mediation aimed at agreeing a solution that may be presented to the court.

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7. If the parents go to court, what issues can the judge decide upon relating to the child? 

The court issuing the separation or divorce order:

  • decides which member of the couple will have custody of the child and sets out the rights of access of the parent who does not have custody; it may also order joint or alternating custody, both of which are expressly provided for under divorce law but may also be applied to cases of separation;
  • determines the extent and ways in which the other partner must contribute to the maintenance, upbringing and education of the children;
  • decides who retains the right of residence in the family home, whereby special consideration is given to the parent who has custody of the child;
  • makes due provision for the administration of the children's property and, in the case of joint custody, establishes that both parents have real rights of limited duration;
  • takes any other measure regarding the child (e.g., case law has established that the children have an interest in maintaining relationships with their grandparents and has set out rules for meetings).

8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

As a general rule, unless the court orders otherwise, the parent with custody of the child has sole responsibility.

However, the most important decisions in relation to the child must be taken by both parents, unless the court has ruled otherwise.

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Case law holds that important decisions definitely include the choice of school and educational direction, the choice of a profession on which the child is to embark, decisions regarding non-urgent operations (the responsibility to provide information is not important where there is no choice), decisions to remove the child permanently from the country (in certain cases, the decision taken by the parent with custody is deemed to have been taken in accordance with the child's interests, although rights of access need to be redefined, cf. Court of Cassation 1995/1732).

9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

The Court may decide that the parents should have joint custody, where it feels that this is in the children's interest, particularly with regard to their age.

The rules set out in section 6 of Act No 1970/898 amended are not overly prescriptive, and the details are left to the court's discretion.

In practice, where the court decides to award joint custody, the child lives with one of the parents (usually the mother), while the other parent plays a greater role in the child's life. Although the law is intended to reduce conflict and encourage the parents to work together, this is not always the outcome, and in fact the courts rarely award joint custody.

Alternating custody is even rarer, as case law generally views this as a solution that runs contrary to providing a stable life for the children or their parents.

Parliament is in the process of adopting a bill to amend the law on joint custody.

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10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

  1. Applications for custody of children following a separation or divorce are lodged with the court issuing the separation or divorce order. The application, which is lodged in the form of a petition, must contain a description of the circumstances on which it is based and demonstrate the existence of a legitimate or legitimised children or children adopted by both spouses during their marriage. Evidence of recent earnings must be annexed to the petition or statement of defence (cf. section 4 of Act No 1970/898 and subsequent amendments).
  2. In the case of abuse on the part of one or both parents, the Family Court in the child's usual place of residence at the time the application was lodged may issue orders relating to parental responsibility. The Family Court may take all suitable measures including an injunction to prevent an abusive parent from going to the family home or the loss of responsibility. These measures may be set aside at any time.
  3. Where the parents are not married, questions relating to parental responsibility are handled by the court in the child's usual place of residence.

11. Which procedure applies in these cases? Is an emergency procedure available?

  1. Where custody is awarded following the issuing of a separation or divorce order, the procedure for separation or divorce proceedings applies (see divorce order). Where attempts at reconciliation have failed at the time of the hearing, urgent provisional measures are taken in the child's interests that may be enforced if necessary. There is no provision for an emergency procedure, nor does there appear to be any need for one. Where a parent harms a child, the Family Court may take whatever emergency measures it deems necessary.
  2. Questions relating to parental responsibility must be resolved by the Family Court (which therefore includes the cases set out in subsections B and C of question 10).The procedures are covered by section 336 of the Civil Code, in conjunction with the general provisions governing proceedings in chambers (sections 737 et seq. of the Code of Civil Procedure). In response to an application by the other parent, by both parents or by the public prosecution service the court hears summary information, the public prosecutor and the parent against whom the measure has been applied for before ruling in chambers. In cases of emergency, the court may order temporary measures in the child's interests. At present there is no need for a defence counsel to be present. Parliament is currently examining a bill on expert defence necessary in such proceedings.

12. Can I obtain legal aid to cover the costs of the procedure?

It is possible to obtain legal aid to cover the costs of the procedure (including expert advice) and lawyer's fees. It should also be pointed out that separation proceedings, divorce proceedings and proceedings regarding parental responsibility are not subject to the standard fee for entering cases on the cause list for civil cases or non-litigious proceedings at any stage (cf. section 10 of the Consolidated Act No 115/2002).

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13. Is it possible to appeal against a decision on parental responsibility?

  • It is possible to appeal against decisions on parental responsibility adopted in the course of separation or divorce proceedings; a further appeal may be made to the Court of Cassation against the original appeal ruling.
  • Appeals against decisions altering the conditions laid down during separation or divorce proceedings may be lodged with the Court of Appeal within 10 days of service of the decision (sections 710 and 737 of the Code of Civil Procedure; section 9 of Act No 1970/898 and subsequent amendments). It is possible to appeal against appeal court rulings in cassation (only if there has been a violation of the law) under Article 111 of the Constitution (Cass. 2004, No 24265).
  • The Family Court may limit or reduce parental responsibility in response to an application, if a separation or divorce order has been issued. Appeals against its decisions may be lodged with the Court of Appeal within 10 days of notification of the decision. It is not possible to appeal in cassation against Court of Appeal rulings.

14. In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

To be enforceable, orders and other decisions taken by the courts must have a clause added to that effect, unless the law provides otherwise.

The clause (cf. section 475 of the Code of Civil Procedure) is added by the Clerk of Court after checking that the period allowed for a standard appeal, an appeal in cassation or a revocation under section 395(4) and 395(5) of the Code of Civil Procedure has expired.

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The enforceability order may be issued only to the party in whose favour the decision has been taken, in the form of a single copy stamped by the clerk's office. The party concerned may request further copies from the head of the service that took the decision, who issues the necessary order (under sections 475 of the Code of Civil Procedure and 124 and 153 of the implementation rules).

15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in Italy?

  • Under Act No 1995/218 on the reform of the Italian system, international private law judgments issued by non-Italian courts are automatically recognised, in that they may be reviewed only after the event if they are challenged or where they must be enforced. The case is referred to the Court of Appeal in the place of enforcement. Where no special provision is made, normal first-instance procedure is followed, although the case must be examined by a bench of judges. The final decision must take the form of a judgment.
  • Decisions on parental responsibility (the assignment, exercising, delegation, total or partial revocation of parental responsibility, and also protective measures regarding the administering, safeguarding or removal of the child's property) taken in another Member State (apart from Denmark) are governed by Council Regulation (EC) No 2201/2003 Brussels II, which prevails over multinational agreements on the same subject, and, in addition to extending the field of application of the previous Brussels II Regulation (EC) No 2201/2003 (which it expressly repeals), also provides for the automatic recognition and enforceability of decisions concerning rights of access and the return of a child in all Member States without any form of procedure being required.

All other decisions regarding parental responsibility are automatically recognised. However, any interested party may apply for the recognition or non-recognition of a decision for any of the reasons indicated in the Regulation (Articles 21 and 23).

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There are two stages to the procedure, which is in part defined in the Regulation (Article 30): the first stage consists of a warning issued ex parte; the second stage begins with an objection and must comply with all the rules on adversarial proceedings.

The interested party must legitimise the action, which is submitted in the form of an appeal. Jurisdiction resides with the court in the place of residence of the person against whom the enforcement order has been issued or the usual place of residence of the child named in the application. Where neither of these places is in the Member State where the decision is to be enforced, the place of jurisdiction is the place on enforcement.

A copy of the decision and the standard certificate mentioned in Article 39 of the Regulation must be annexed to the application. However, the court seised may set a date for them to be submitted, accept equivalent documents instead or waive this requirement, where it deems the documents unnecessary.

  • Where the decision must be enforced, the interested party must request a declaration of enforceability. Jurisdiction and responsibility for the procedure is determined under the same rules that apply to recognition.
  • Issues relating to the maintenance obligation are covered by Regulation (EC) No 44/2001.

16. To which court should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

Appeals are lodged with the Court of Appeal. The question of jurisdiction is resolved on the basis of the criteria laid down in the Regulation.

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When an appeal is lodged, the court adopts the procedure for contentious proceedings and concludes with a declaratory judgment, against which an appeal may be lodged with the Court of Cassation.

17. Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in Italy or are of different nationality?

Under section 36 of Act No 1995/218, the personal and property relations between parents and their children, including questions relating to parental responsibility, depend on the child's status. Unless otherwise specified, the point of reference is the child's nationality at the moment when the case is brought before the court. Where the child has more than one nationality, the law of the State with which the child has the closest links applies. Under section 19 of the Act, if the child has more than one nationality and one nationality is Italian, Italian nationality takes precedence.

In relation to decisions concerning the protection of the child (including measures under sections 330 and 333 of the Civil Code), section 42 of Act No 1995/218 refers to the 1961 Hague Convention. Article 3 of the Convention requires relationships subjecting the infant to authority (including parental responsibility), which are governed by the domestic law of the State of the child's nationality, to be recognised in all contracting States, which means that it applies the same criterion as section 36. However, where there is a serious risk to the child's person or property, the authorities of the State in which the child normally lives or, in emergency situations, the authorities of the State in which the child or property is located may take protective measures under domestic law (Articles 8 and 9 of the Convention)

Situation at 31 December 2005

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Last update: 18-01-2007

 
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