Custody of minors

With Law 54 of 2006, the institution of shared custody is defined, questioning the theory according to which, the exclusive custody of a minor to the mother was the most desirable solution.

Art. 155. CC– (Provisions regarding children). Even in the case of personal separation of the parents, the minor child has the right to maintain a balanced and continuous relationship with each of them, to receive care, education and instruction from both and to maintain meaningful relationships with the ancestors and relatives of each branch parental.

To achieve the purpose indicated in the first paragraph, the judge who pronounces the separation of the spouses adopts the measures relating to the offspring with exclusive reference to their moral and material interest.

The same evaluates as a priority the possibility that minor children remain entrusted to both parents or establishes which of them the children are entrusted to, determines the times and methods of their presence with each parent, also establishing the extent and manner in which each they must contribute to the maintenance, care, education and upbringing of their children. It takes note, if not contrary to the interests of the children, of the agreements between the parents. Adopt any other provision relating to the offspring.

Parental responsibility is exercised by both parents. The decisions of greatest interest to children relating to education, upbringing and health are taken by mutual agreement taking into account the abilities, natural inclination and aspirations of the children. In case of disagreement, the decision is left to the judge.

Furthermore, limited to decisions on matters of ordinary administration, the judge can establish that the parents exercise parental responsibility separately.
Unless otherwise agreed freely by the parties, each of the parents provides for the maintenance of the children in proportion to their income; the judge establishes, where necessary, the payment of a periodic check in order to implement the principle of proportionality, to be determined considering:

1) the current needs of the child;
2) the standard of living enjoyed by the child in constant cohabitation with both parents;
3) the time spent with each parent;
4) the economic resources of both parents;
5) the economic value of the domestic and care tasks undertaken by each parent.

Going on, the judge can order the custody of children to only one of the parents if he deems with a reasoned provision that the custody of the other is contrary to the interest of the minor.

One of the two parents may, at any time, request the sole custody of the minor when the conditions indicated in the first paragraph are met. The judge, if he accepts the request, orders the sole custody of the instant parent, without prejudice, as far as possible, to the rights of the minor provided for in the first paragraph of Article 155.

It should be noted that if the request is manifestly unfounded, the judge may consider the behavior of the instant parent for the purpose of determining the measures to be taken in the interest of the children, without prejudice to the application of Article 96 of the Code of Civil Procedure.

It is good to remember that before the issuance of a possible sentence with Art. 155-sexies. – (Powers of the judge and hearing of the minor), the judge can take evidence, at the request of a party or ex officio. The judge also orders the hearing of the minor child who has reached the age of twelve and also younger if capable of discernment.

If he deems it advisable, the judge, having heard the parties and obtained their consent, may postpone the adoption of the measures referred to in Article 155 to allow the spouses, using experts, to attempt mediation to reach an agreement, with particular reference to the protection of the moral and material interest of children.

In summary, this law gives the possibility to minor children to live with both parents even though their emotional relationship has been definitively interrupted.

The goal of the legislator is to adopt the so-called criterion of two-parenting as a fundamental element for the protection and conviviality of minor children, through the attendance of both parents.

Exclusive custody becomes a limitation to be adopted on an exceptional basis if the interest of the children is called into question, that is, when one of the two parents fails to fulfill their parental duties and is unable to protect the interests of the children.

The factors that can determine exclusive custody can be:

  • The minor shows difficulty in relating to one of the two parents, or shows constant hostility towards one of the parents, even refusing any type of meeting;
  • when a parent conditions their children by persuasion and physical and psychological distancing from the other parent;
  • when the violation of the rules relating to the application of the right of visit is repeatedly revealed, thereby contravening the essential need that is rightfully incumbent on children and both parents, to maintain stable and serene relationships;
  • Non-compliance relating to the payment of the maintenance allowance in favor of the children;
  • The manifestation of disinterest in the parental role on the part of one of the parents making it unavailable for the children;
  • Addiction to alcohol and drugs by one of the parents
  • Violence against the offspring by one of the parents

In light of the foregoing, the parent may, at any time, claim the exclusive custody of their minor children, taking into account that the Juvenile Judge, in the presence of a clear parental unfitness of both parents, can arrange for the minors to be entrusted to third parties.

The role of the private investigator is to:

  • To ascertain the reliability and morality of the parent by observing the behavior manifested in the presence and not of the minor children;
  • Document the suitability of the places where the minor children live, the people they attend and the conduct adopted by the parent who has them in foster care;
  • To ascertain the lifestyle and behavior of the custodial parent, contrary to the development of the minor’s physical and moral integrity.

The investigations are carried out observing the utmost confidentiality and professionalism, taking into account the specifics of the case and in full compliance with all legal regulations. Upon completion of the investigation you will receive a detailed service report accompanied by video / photographic evidence.
The investigative activities of the S.A.S., are aimed at providing irrefutable evidence valid in court in order to review the terms of foster care and demonstrate incorrect parenting behavior, such as abandonment, abuse or custody of minor children to third parties.

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S.A.S. Investigazioni & Sicurezza – P. iva IT 02314820222 

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