ITALY Law and Practice Contributed by: Romualdo Richichi, Studio Zanetti Vitali
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility The Italian notion of responsabilità genitoriale appears very similar to the English notion of “parental respon - sibility”. Until 2014, the decision-making capacity, and duty, of parents in Italy was referred to as potestà dei genitori , according to a tradition going back to the patria potestas of Roman law, and, apart from its renaming, the terms and provisions have varied little since the general reform of family law dating back to 1975. According to Article 316 of the Italian Civil Code, parental responsibility belongs to both parents joint - ly, and must be exercised by mutual agreement, in pursuance of the best interests of a child, taking into account the child’s personal inclinations and abilities, particularly, but not exclusively, with regard to their preferred habitual residence, and to all decisions con - cerning education and upbringing. If parents cannot reach an agreement on any issue of specific importance to their child, either of them can ask a judge to intervene. However, before making any decision, the judge must hear each parent, and the child if the child is 12 years old or older – or under 12 if considered mature enough to have a say – and must then endeavour to steer all parties towards a satisfactory solution. Concerning financial matters, according to Article 320 of the Italian civil code, every decision related to the child’s estate, or property, outside the bounds of ordinary administration must be specifically author - ised by the judge, and whenever a conflict of interest arises between the child and those to whom parental responsibility to the child falls with regard to a specific decision, the court will appoint an ad hoc guardian ( curatore speciale ). Finally, according to Article 321 of the Italian Civil Code, an ad hoc guardian can also be appointed if the parents are not willing or able to take the specific action that appears to be required to meet the best interests of the child.
1.2 Requirements for Birth Mothers Based on Articles 250 and 254 of the Italian Civil Code, to be granted parental responsibility, a birth mother must recognise ( riconoscimento ) their child. This can be done upon the child’s birth while the birth certificate ( atto di nascita ) is being prepared, or by means of a simple declaration to the citizens’ registrar ( ufficiale di stato civile ) following the child’s birth – or even before, once the child has been conceived. A child can be also recognised later by a public deed made by a notary ( atto pubblico ), or even in a will. However, according to Articles 256 and 257 of the Civil Code, in all cases, such acknowledgment is irrevocable and not subject to limitation. The only conditions to a mother’s right to acknowl - edge parentage of a child are that the mother must have reached the minimum age of 16 (if this is not the case, the child can be recognised anyway if the minor parent obtains authorisation by the judge), and that the child must not have been conceived by way of an incestuous relationship (however, according to Article 251 of the Civil Code, if the acknowledgement is deemed to be in the best interests of the child, it could be authorised by the judge even in this case). 1.3 Requirements for Fathers The rules that apply to the acknowledgment of a child by the mother apply also to the acknowledgment of parentage by the father if the parents are not married (in this case, see 1.5 Relevance of Marriage at Point of Conception or Birth ). However, according to Article 250 of the Italian Civil Code, if the child is not recog - nised jointly by the parents, the acknowledgment by the second parent (who, almost without exception, will be the father) is subject to the agreement of the parent who has already recognised the child (almost invariably the mother). However, the consent to the acknowledgement by the mother cannot be withheld if its refusal is not deemed to be in the best interests of the child; in this case, the parent who wishes to acknowledge a child already recognised by the other parent can ask the judge to authorise the acknowledgment by court order. This order can also be applied with respect to child’s last
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