ITALY Law and Practice Contributed by: Romualdo Richichi, Studio Zanetti Vitali
adoptive parents. Their fitness as parents is ascer - tained, usually with the involvement of social workers after a period of pre-adoptive custody lasting one year (extendable to two) and a final verification that the adoption is in the best interests of the child and that all conditions required by the law have been fulfilled. Children of 12, or considered mature enough to have a say if younger, must agree to be adopted. International adoption is governed by Articles 29–43 of Law No 184 of 4 May 1983 and concerns the adoption by couples resident in Italy of foreign chil - dren declared adoptable in their country of origin. The adoption must take place in accordance with the prin - ciples set by the Hague Convention of 29 May 1993. The process is open to couples who, upon request, have been declared fit to adopt by the juvenile court, and it takes place following complex proceedings held in co-operation with specifically authorised organisa - tions. International adoption has the same effect as national adoption. According to Articles 44–57 of Law No 184 of 4 May 1983, non-legitimating adoption is referred to as “adoption in specific situations” ( adozione in casi particolari ), and it allows for the adoption of a child who has not been declared to be in state of enduring abandonment in the following four cases: • when the child is orphaned by two parents and has been in the custody of relatives or a person with whom they have a stable, long-term relationship; • when one spouse wishes to adopt the biological or adoptive child of the other; • when the child has a physical or mental impair - ment; and • when pre-adoptive custody is not possible. This kind of adoption requires the agreement of any child older than 14, and of their biological parents and their spouse (in Italy, it is possible for a minor to enter into a marriage, provided that the minor is at least 16 years old and has been authorised by the court), but if consent is refused without justification, the juvenile court can order the adoption (this cannot happen if the biological parents refusing consent for the adoption still exercise parental responsibility on the would-be
adoptee, or if the consent is refused by the spouse of the adoptee, provided that the couple lives together). Adozione in casi particolari is subject to revocation in certain very specific cases.
2. Relocation 2.1 Whose Consent Is Required for Relocation?
In accordance with Article 316 of the Italian Civil Code, as with any decision of importance affecting a child, relocation to another country requires the agreement of both parents, even if the child is in the sole custody of one parent. 2.2 Relocation Without Full Consent Without the required parental consent, a child’s relo - cation has to be authorised by the court ( Tribunale ). If the issue of relocation arises when proceedings for legal separation, divorce or custody of a child born of non-married parents are already pending, the relevant measures will fall within the competence of the same judge of those proceedings and will be treated within the scope of these, possibly by means of a provisional order, according to Article 473 bis 23 of the Italian Code of Civil Procedure. If the parents disagreeing on relocation are already legally separated or divorced or, since they are not married, a final order concerning custody of their child has already been issued, proceedings concerning relocation will have the purpose of modifying orders concerning children already in place, and should take the same form as legal separation, divorce and cus - tody proceedings, according to Article 473 bis 47 of the Italian Code of Civil Procedure. If the child’s parents are co-habiting, or if they are not but the orders in place will not need to be modified in any way, despite the change in the place of residence of the child (which, while not completely impossible, is very unlikely, in particular when the orders in place are very detailed; when the relocation would impact on the visiting calendar in place, making it unviable; and when the new circumstances impact on the finan -
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