ITALY Trends and Developments Contributed by: Romualdo Richichi, Studio Zanetti Vitali
Recent Factors Impacting the Relocation of Children in Italy The most significant developments affecting the relo - cation of children in Italy can be summarised as fol - lows: • the Italian courts are focusing on treating parents as equals in matters relating to children; • more importance is being given to listening to chil - dren in potential relocation situations; and • the recent reform of civil procedures ( riforma Cartabia , or the “Cartabia Reform”) has radically changed – and not necessarily for the better – the way civil proceedings are handled and introduced a new, standard process applicable to cases involving matrimonial and parental responsibility judgments. These three developments affect not only instances of child relocation, but almost all cases involving respon - sibility for children – and they are hugely significant when handling disputes over an international move involving a child. Granting parity between parents Joint custody ( affidamento condiviso ) has been a standard requirement in Italy since Law No 54 of 8 February 2006 made sole custody ( affidamento esclu - sivo ) an exceptional option, viable only when joint cus - tody is impossible. In the first few years after the above change, the provi - sion concerning joint custody was mostly implement - ed formally because, on the one hand, even when the custody was given to one parent only, all of the most important decisions ( decisioni di maggiore importan- za ) concerning a child (school enrolment, sports, etc) and all consent (such as that required to apply for ID documents, or to travel abroad) required the agree - ment of both parents. On the other hand, in cases of joint custody, it was customary for the habitual residence of the child ( col- locazione abitativa prevalente ) to remain with one of the parents (usually, but not necessarily, the mother) who acted as the primary caregiver, while the other parent spent every other weekend with the child, and
possibly one or two additional nights per week and part of the school holidays. The prevalence of joint-custody arrangements meant that, when the parent with whom the child was placed ( genitore collocatario ) and who acted as the principal caregiver decided to relocate with the child, it was very difficult for the other parent to prevent the court from authorising the move. This is because the alter - native, which was placing the child with the other par - ent, implied a change in the principal caregiver, and consequently was seen as potentially more damaging to the child than relocation. In many cases, relocation simply led to a limited rearrangement with respect to the visiting rights of the parent left behind, who, for example, might be granted the right to spend a larger share of weekends or holidays with the child. In recent years, however, the approach of Italian courts to joint custody has changed dramatically. The idea that one parent should act as the principal caregiver has been put aside in favour of the idea that children have the right to spend an equal share of their life with either parent according to a specific calendar, grant - ing each parent more or less equal amounts of time – even if this might deprive the child of a true family “home”, forcing them to deal with the logistical issues of constantly being on the move with school books and other material and equipment from one parent’s home to the other’s. It goes without saying that this new approach to child custody and placement also has major consequences for disputes concerning child relocation. While in the past denying an application to relocate filed by the main caregiver meant risking upsetting a situation in which the roles of the parents were clearly deter - mined, and therefore in many cases was not a viable option, in the new situation, where each parent has equal rights, an order authorising relocation, either domestic or international, must be assessed only in view of the best interests of the child involved, since there are no major problems to work out around how a child will preserve a good relationship with one of the parents. The new emphasis on parity of the par - ents has potentially made it much more difficult to obtain authorisation to relocate without the consent of the other party, particularly when the reasons for
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