Super exclusive custody in Italy

The assignment of responsibility for minor children to the parents refers to the exercise of the duty of care and management with respect to minor children in situations of separation, divorce or in the case in which the parents do not live together.

The assignment of responsibility consists, therefore, of the right and obligation of each parent to take decisions of great relevance for the well-being of the children, such as for education, health, main residence and other fundamental choices.

When two parents with minor children decide to separate, the guiding principle is that each maintains their part of parental responsibility in an equitable way, so that the main decisions concerning the minor children are agreed between both.

Joint assignment does not imply that the child must spend exactly half of the time with each parent, but entails sharing of educational decisions and equal participation in the child’s life by both parents.

Therefore, the essence of joint assignment does not lie in equal cohabitation of the child with both parents or in continuous alternation, but in the greater accountability of both parents who, once common guidelines have been adopted for the education of the child, commit to respecting them together.

Even with joint assignment it is however necessary to establish a main domicile for the child, a financial contribution for the parent with whom the child resides, and, if necessary, the assignment of the family home.

In the case in which the parents do not manage to find an agreement on important decisions for the children, Boschetti Studio Legale will represent you before the Giudice Tutelare of the Tribunale in the locality of residence of the minor so that the best decision is taken.

The exception provided for by the Codice civile establishes that the judge can dispose the exclusive assignment of the minor children to only one parent should the joint assignment be considered contrary to their interest.

Each parent can, at any time, request the exclusive assignment if they consider that the other parent cannot act in the best interest of the minor child.

If the Judge accepts the request, they dispose the exclusive assignment to the requesting parent, ensuring, as far as possible, the rights of the minor to maintain a continuous and balanced relationship also with the other parent, and to receive care, education and moral assistance from both, in addition to preserving significant bonds with grandparents and other family members of each parental branch.

If the request proves manifestly unfounded, the Judge can assess the conduct of the requesting parent to establish any measures adequate to the well-being of the child.

The parent who has exclusive custody exercises, except for different indication of the Judge, parental responsibility exclusively, following the directives established by the judge.

Except for different provision, the decisions of greater importance for the children are however taken by both parents.

The parent who does not have custody nevertheless has the right and the duty to supervise the education and instruction of the child and can turn to the judge, with the patronage of lawyers specialised in Italian and international family law of Boschetti Studio Legale, should they consider that decisions contrary to their well-being have been taken.

If joint assignment is the rule and the exclusive one is the exception, super exclusive assignment represents an entirely particular situation.

Super exclusive assignment in fact entails the concentration of decision-making responsibilities on only one parent, including the crucial choices for the minor, such as those concerning health, education, instruction and the place of main residence.

This concentration of responsibility on only one parent does not modify the ownership of parental responsibility, but only redefines its modalities of exercise.

In case of strong family conflicts, characterised by distrust, anger or fear, often associated with the conduct of one of the two parents, the judge can legitimately resort to super exclusive assignment, even without declaring the lapse of the parental responsibility of the other.

In recent judicial cases that our Studio Legale has dealt with, super exclusive assignment was disposed when one parent was completely absent from family life, was not traceable and had not participated in the proceeding, conduct that denotes a poor predisposition to a responsible parental role.

To arrive at a super exclusive custody, specific conditions must be present that justify such a decisive intervention by the judge. Here are the main prerequisites in detail:

• Serious and irreparable conflict between the parents: Situations of intense conflict between parents can make impossible a shared management. If communication between the parents is almost non-existent or deteriorated by dynamics that could harm the minor, the judge can establish a super exclusive custody in favour of the parent who proves more capable of ensuring emotional and psychological stability to the child. Here it is essential that the requesting parent demonstrates how the other fails to collaborate and how the situation is already damaging the minor.
• Unsuitability of a parent for specific reasons: The unsuitability of a parent can derive from various circumstances, such as serious psychological problems, drug addiction, abuse or violent conduct. In these cases, super exclusive custody is seen as a way to protect the minor. To demonstrate such unsuitability, documentary evidence, testimonies, medical reports, police reports or psychological expert opinions may be necessary.
• Need for protection of the minor: In some cases, the judge can consider super exclusive custody as a measure necessary to avoid exposures to dynamics harmful to the minor. This type of custody ensures stability and educational continuity, avoiding that the minor suffers traumas or discomforts deriving from a conflictual or unstable family environment.

In all these cases, the support of a law firm experienced in super exclusive custody is essential, which can guide the requesting parent in the gathering and presentation of the necessary evidence.

Super exclusive custody represents a solution that aims at the well-being of the minor, but it is a measure that must be applied with sensitivity, since it influences in a relevant way the family relationship.

• Reduction of conflict: By limiting the intervention of the other parent in important decisions, the minor is exposed to fewer conflicts and uncertainties. This can improve the family climate, reducing stress and promoting the emotional stability of the child.
• Limitation of contacts: Even if a parent has super exclusive custody, the other can nevertheless retain the right of visitation, unless it is expressly denied by the judge for serious reasons. However, in situations in which contact with the other parent is not healthy for the minor, this custody can ensure stronger protection.
• Greater responsibility for the custodial parent: Having super exclusive custody implies greater responsibility in educational, health and scholastic choices for the minor. It is important that the custodial parent commits to ensuring the stability and balance of the child, also in the interest of the relationship with the other parent, if possible.