ITALY Law and Practice Contributed by: Carlo Rimini and Rebecca Andrello, Studio dell’avv. prof. Carlo Rimini
parental responsibility over the children. Accord - ing to Article 337-ter of the Italian Civil Code, decisions in matters of parental responsibility must have the primary purpose of protecting the children’s interest to maintain relationships that are as strong and frequent as possible with both parents and with both families. Joint cus - tody means that the most important decisions in terms of the life of the children (school, educa - tion, health, city of residence, religion, etc) are taken together by the parents, while day-to-day and routine decisions can be taken separately. Sole custody (Article 337-quater of the Italian Civil Code) is an exceptional choice (applied in the minority of cases) that can only be adopted when one of the parents appears to be unable or unfit to take care of the children or not suit - able for the role (dangerous behaviour, unregu - lated lifestyle, mental health problems, etc) and, consequently, joint custody is not possible. The parent who has sole custody has the right to make the most important decisions for the chil - dren autonomously. Placement Even when joint custody is granted, in most cas - es the court identifies a parent (most frequently, the mother) with whom the children are sup - posed to prevalently live. In order to guarantee the children’s habits and environment, as well as their safe and balanced development, the family home is supposed to be awarded to the parent with whom the children are placed, so that they can continue living there. Visitation rights The court also rules on visitation rights (Article 337-ter of the Italian Civil Code) in favour of the parent who does not live with the children; in recent years, the time that children spend with such parent has lengthened considerably. Gen -
erally speaking, each parent spends alternate weekends (from Friday to Monday) with the children. During the week, the parent who does not live with the children can spend one or two afternoons and overnight visits with them. Holi - days can also be divided 50/50. Child Support According to Article 3 of EU Regulation 4/2009, Italian jurisdiction in matters of children mainte - nance is established if: • the defendant is habitually resident in Italy; • the creditor is habitually resident in Italy; or • Italian courts have jurisdiction to entertain proceedings concerning parental responsi - bility if the matter relating to maintenance is ancillary to those proceedings (unless that jurisdiction is based solely on the nationality of one of the parties). Child maintenance is decided within legal sepa - ration and divorce proceedings. If the parents agree on child maintenance, the agreement is approved by the judge within the final decision pronouncing legal separation/divorce. If the parents do not agree on child maintenance, the decision is up to the judge pronouncing the legal separation/divorce decision. If the parents are not married, proceedings start concerning children’s issues only. The procedure for granting child support in favour of children born in wedlock and those born out of wedlock is the same. Ordinary costs Child maintenance is a sum paid monthly by one parent to the other for the ordinary life needs of the children. The judge cannot order the transfer of any capital to the children, but the parents
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