ITALY Law and Practice Contributed by: Romualdo Richichi, Studio Zanetti Vitali
cial arrangements related to the maintenance), pro - ceedings for applying for the relocation can be held in simplified form according to Article 473 bis 38 of the Italian Code of Civil Procedure. However, even in this case, on the one hand, some judges require that the full procedure be followed anyway, possibly with tighter deadlines, and, on the other hand, if, after the filing of the petition, one of the parties applies for a “full” legal separation or custody judgment, the case should be dealt with in the context of the latter pro - ceedings, and only urgent and temporary measures could be taken in the simplified judgment. Further - more, according to the letter of the law, the parties will be required to provide the court with a full financial disclosure in any proceedings dealing with children and, therefore, also in the frame of the simplified judg - ment set out in Article 473 bis 38 of the Code of Civil Procedure, even if the precondition of this judgment is the lack of any need of rulings concerning the financial arrangements – a lack that, per se, should make the disclosure completely superfluous. In all cases, the judge must hear any child who is at least 12 years old, or, if younger, deemed mature enough to have a say, as already stated in 1.1 Paren- tal Responsibility . Moreover, according to Article 473 bis 8 of the Italian Code of Civil Procedure, the judge may appoint a guardian ad litem ( curatore speciale , or lawyer – not to be confused with the curatore speciale of Article 321 of the Italian Civil Code; see 1.1 Parental Responsibility ). A lawyer such as this is appointed in almost every serious case, but in particular when parents appear unable to fairly represent their child in court, or whenever a child of 14 or older asks a judge to represent them. After their appointment, this per - son will act as the attorney of the child (who therefore becomes to all effects party to the judgment) and may also be given by the court the power to represent the child outside the context of the pending proceedings, to carry out certain acts such as those required to fulfil the child’s best interests. Once the appropriate proceedings have been fol - lowed, in order to assess whether the move is com - patible with the child’s best interests, according to Article 473 bis 25 of the Italian Code of Civil Procedure the judge may appoint a court expert ( consulente tec- nico di ufficio ), who will usually be required to provide,
in writing, a full evaluation of the situation of the fam - ily and set out the measures that, according to the expert’s opinion, are most likely to ensure the that the child’s needs are fulfilled (this includes visiting rights, if applicable). Each party will have the right to appoint their own expert ( consulente tecnico di parte ) to assist the court expert. According to Article 473 bis 27 of the Code of Civil Procedure, the judge can also order the intervention of social services to evaluate the family situation and provide the court with a written report. The effective - ness and timeliness of social workers’ interventions are subject to broad variations, depending on where in Italy proceedings take place. While evaluating a case, social workers may avail themselves of the help of psychologists, who can be privately hired, in agree - ment with the parties – or, if no agreement is reached, who can be employees of the same public agency to which the social workers belong or of other public organisations. All decisions on relocation, regardless of their perma - nent or temporary nature, will be subject to appeal (or opposition, if rendered between parents still co- habiting), but will usually be immediately effective, even if challenged. If no agreement is reached on arrangements regard - ing visiting rights and maintenance obligations, any judicial decision concerning relocation will settle issues and may contain provisions concerning travel expenses and the duty of each parent to accompany their child or provide necessary travel arrangements. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation Article 16 of the Constitution of Italy provides that eve - ry Italian citizen has the right to move abroad. When a conflict arises between two parents who are both fit to exercise responsibility over the decision concern - ing the relocation of a child, the court will generally be called upon to decide which of the parents will retain the child in question.
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