Shared custody in Italy
Shared custody is one of the most adopted solutions in separations and divorces, since it ensures the right of both parents to maintain a constant and active relationship with the children. However, when it concerns foreigners residing in Italy or persons residing abroad, the procedures and regulations may have specific particularities because it must be considered that the case is influenced by rules of private international law on the matter of parental responsibility.
With the assistance of a law firm specialised in international law, like Boschetti Studio Legale, it is possible to best address these complex situations, determining what the applicable rules are and the competent Foro to address any dispute in which a foreign citizen in Italy or an Italian residing abroad is involved, when shared custody for foreigners in Italy is at stake.
Difference between shared custody and alternating custody
Italian regulation provides that, in case of marital crisis, the minor child has the right to maintain a stable and significant bond with both parents, receiving from each of them care, education, instruction and moral support. It is important to underline the explicit reference to the right to moral assistance, in line with what is established for the parental relationship also in normal situations, where such right is included among the fundamental ones of the child.
The accent is placed, therefore, on the importance that the child continues to have a significant relationship with both parents, despite the end of cohabitation. This is their primary interest. Therefore, the privileged institution is that concerning shared custody.
That said, the law provides for two different forms of custody: shared, to both parents, and exclusive, to only one of them. It is well to repeat it once more, shared custody is the solution preferred by the legislator, who establishes that the judge must consider this option as a priority. Only if such solution proves contrary to the interest of the minor, can recourse be made to exclusive custody, which represents a residual choice.
Alternating custody, instead, is a form of custody in which the children spend equal or almost equal periods of time with each parent, alternating between the two homes. Unlike shared custody, where the children live mainly with one of the parents, in alternating custody the division of time is balanced, allowing the children to live half of the time with one parent and the other half with the other.
The main difference between shared custody and alternating custody, therefore, lies in the management of time spent with the children: in shared custody, the parents participate together in decisions on the upbringing of the children, but the children live mainly with only one of the parents. In alternating custody, instead, the time of cohabitation is subdivided in an equal manner between both parents, who alternate in caregiving.
Anyone seeking a lawyer for shared custody or alternating custody knows they can rely on Boschetti Studio Legale, thanks to whose team of lawyers experienced in family law all the questions inherent to custody of children in contexts of marital crisis can be addressed.
Shared and joint custody among foreigners: what changes
For foreigners residing in Italy or for Italians who live abroad, joint custody, or shared custody, can present legal complications. It is fundamental to understand how national and international regulations that govern cases with cross-border profiles can have influence, in the area of parental responsibility, also for shared custody of children.
It must be known that at international level the parent-child relationships are regulated, at internal level, by legge n. 218/1995, and at cross-border level, by the EU Regulation Bruxelles II bis, which deals with parental responsibility only as regards jurisdiction and recognition, as well as by the 1961 Hague Convention, today replaced among the contracting States by the 19 October 1996 Hague Convention, which entered into force in Italy in 2016.
Such Convention includes in the concept of parental responsibility the right of custody, including the care and the choice of the place of residence of the minor, and the right of visitation, which allows spending time with the minor also outside their habitual residence.
In general, general competence for questions of shared and joint custody among foreigners is entrusted to the judicial authority of the State in which the minor habitually resides at the date of submission of the petition; therefore the place where the personal life of the minor takes place must be identified.
With the assistance of the Boschetti Studio Legale team of lawyers, experienced in problems of family law with cross-border profiles, it is possible to address these situations with multiple nationalities or with other elements of the case that concern legal systems of different States. We can ensure that the custody and the right of visitation of the parent are not hindered, even when one of the parents resides in another Country. In fact, in addition to every other aspect concerning the custody of children in contexts of separation and divorce between spouses, we are committed so that the right of visitation of the hindered parent is restored in respect of the law and of the decisions of the merits judge.
Shared and exclusive custody: how it works
As has been observed, shared custody is the rule: the structure of family law wants the judge to assess as a priority the possibility of disposing shared custody, and only should it be in contrast with the prevailing interest of the minor, opt for exclusive custody.
The law, therefore, wants both parents to maintain equal responsibility in the most important decisions concerning the children, such as education, health and the management of daily life, even if the children live mainly with only one of the parents.
The objective is to ensure the continuity of the bonds with both.
Exclusive custody, as a residual hypothesis, is granted when one of the parents is considered unsuitable to take care of the children, and in this case all decisions are taken by the custodial parent. However, the excluded parent can maintain the right of visitation, except for exceptional cases. This is an exceptional situation, considered by the legislator with disfavour, on the basis of which the judge is allowed to dispose custody to only one of the parents, on the prerequisite that custody to the other is contrary to the interest of the child.
It must be specified that for consolidated case law the mere conflict between the parents is not sufficient to legitimise exclusive custody. On the other hand, exclusive custody, entailing the sacrifice of the principle of bi-parenthood provided for by the Codice civile, does not require extreme situations, it being sufficient that the sharing of custody is contrary to the interest of the child, for example because the concrete case would not allow them to live a balanced, serene and satisfying life. Naturally, the reasons why the incompatibility of shared custody with the interest of the minor can be assumed can only be assessed by the judge.
Boschetti Studio Legale, as a law firm specialised in family law, can offer fundamental assistance to address cases of shared and exclusive custody, especially in contexts of international parental responsibility. Thanks to the competence of the team of lawyers experienced in custody of children, the Studio can guide the parents in understanding the differences between the two types of custody, presenting the options most suited to the well-being of the children. Furthermore, legal assistance is crucial to prepare and submit the necessary documentation, represent the parents in court and ensure that their rights, as well as those of the children, are fully protected throughout the process.
Typical scenarios / Case studies
The typical scenarios have been developed by combining the most significant family law situations that our firm regularly handles, creating structured and realistic examples designed to help readers better understand and navigate their own legal matters. The case studies, on the other hand, are based on real cases handled by our firm, with all personal data and identifying details anonymised to protect client confidentiality.
Registering a cohabitation agreement and regularising the status of a foreign partner
A couple living in Rome, consisting of an Italian citizen and his foreign partner without valid residence documents, sought legal protection for their relationship. An urgent application under Article 700 of the Italian Code of Civil Procedure was filed to safeguard their cohabitation, followed by proceedings to obtain an EU family member residence card.
Adult adoption to legally recognise a de facto family relationship
A United States citizen living in Rome sought to formalise a long standing family relationship with his uncle by marriage through adult adoption. Proceedings were brought under Articles 291 et seq. of the Italian Civil Code to obtain legal recognition of their established family bond.
Cohabitation agreement for an Italian Brazilian couple: protecting assets and securing residence rights
An Italian entrepreneur and his Brazilian partner had been living together in Milan for three years. Their situation involved three interconnected legal vulnerabilities relating to immigration, asset protection and succession planning, all addressed through a coordinated legal strategy.
Adoption in Colombia: an Italian couple fulfils their dream after a three year journey
A couple married for eight years embarked on an international adoption in Colombia. The procedure involved two legal systems, three Italian institutions and the Colombian Central Authority, requiring careful coordination throughout every stage of the process.
Succession involving heirs in four different countries: coordinated management across Italy, the United States, the United Kingdom and Switzerland
An Italian entrepreneur left assets located in Italy, the United States and Switzerland, with four heirs residing in four different countries. The matter required the parallel coordination of four legal systems and four tax regimes.
Adult adoption of a partner’s child: legal recognition of a twenty year family bond
A fifty eight year old man seeks to adopt his wife’s thirty year old son, whom he has helped raise for twenty years. Although the relationship was genuine and long established, it had no formal legal recognition, with significant implications for the biological children’s inheritance rights.
Challenging a will for infringement of forced heirship rights: €800,000 recovered for the heirs
Two children inherited only €20,000 each under a will that left almost the entire estate to their late father’s second wife. An action to enforce their forced heirship rights was successfully resolved through mediation.
Succession planning for a family business: transferring a €3 million business to the next generation
A sixty two year old entrepreneur needed to transfer ownership of a company employing fifty people to the son who had been managing the business, while safeguarding the interests of his daughter, who had chosen a different career path. A family agreement and a holding structure ensured business continuity and long term stability.
International adoption by a single parent: when the law opens a path few people know exists
A forty five year old single woman embarked on an international adoption. Although legally possible, this route remains little known and requires a carefully planned legal strategy from the very first stage, beginning with the application for the certificate of suitability.
Digital inheritance: recovering cryptocurrencies and digital assets after death
A professional passed away leaving more than €600,000 in cryptocurrencies held across multiple wallets and exchanges, without providing any access instructions. A substantial digital estate was at risk of being lost forever.
Legal name change for a transgender person: aligning official documents with gender identity
A thirty two year old professional, who had been undergoing hormone therapy for eight years, still had official documents bearing the male name assigned at birth. This discrepancy repeatedly forced unwanted disclosure of her gender identity in professional, banking and administrative settings.
Legal gender recognition and the update of more than 20 official documents: from court judgment to a new legal identity
A forty five year old executive had already obtained a court order granting legal gender recognition but was then faced with the real challenge: coordinating the update of an identity card, driving licence, university degree, employment records, mortgage documentation and insurance policies across multiple authorities, each with different procedures.
Legal advice for shared custody in Italy
Turning to a law firm for shared custody is crucial, especially for foreigners residing in Italy or for parents residing abroad. Legal advice for shared custody intended for a foreigner in Italy is essential to address the complexities linked to jurisdiction and to cultural and regulatory differences.
Recalling that on matters of parental responsibility, international regulation refers to the place of stable abode of the minor, one cannot but observe how only a lawyer experienced in international family law is able to help the foreign parent to understand their rights and duties according to Italian law, applicable in cases in which the minor stably resides in Italy.
The objective of Boschetti Studio Legale is to facilitate the process to obtain shared custody, as a priority form of respect for the interest of the minor in bi-parenthood, also in international cases of shared custody for foreigners in Italy. We support our clients in the management of any conflicts between the regulations of the Country of origin and the Italian ones, illustrating what the applicable rules are, the competent Foro, and ensuring the protection of the right of visitation and the best interest of the minor.
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How much does a lawyer for custody of children cost?
How much a lawyer for custody of children costs may vary depending on the complexity of the case, on the duration of the proceeding and on the specific needs of the client. It is important to request a preliminary consultation with the law firm to assess the details of the case and obtain a personalised quote, based on the services necessary to protect the rights of parents and children.
What are the lawyers for separations called?
What the lawyers for separations are called is easy to say, since it concerns lawyers specialised in separations and divorces; therefore, they are called "divorce lawyers" or "matrimonial lawyers". These professionals deal with questions linked to family law, such as shared custody, support allowances and division of assets.
What is the difference between joint custody and shared custody?
The difference between joint custody and shared custody, in Italy, can be said not to exist. Such terms, in fact, are mostly used as synonyms. Both indicate that the parents have equal rights and responsibilities in the upbringing of the children, even if the minors live mainly with one of the two.
What does shared custody provide for?
Italian regulation that provides for shared custody establishes that both parents must take together the most important decisions concerning the lives of the children, such as, by way of example, the choice of school, medical care and extracurricular activities. The parents, even if separated, collaborate to ensure the well-being of the children.
How to request shared custody?
To request shared custody it is necessary to submit a petition to the competent court through one's lawyer experienced in divorces and separations. The judge, assessing the specific case, will establish the custody of the minors in the interest of their well-being and of the relationships with both parents, seeking to safeguard the fundamental principle of bi-parenthood.
