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 cases that the firm routinely handles, with the aim of creating a structured and complex case study to help readers navigate the handling of their own personal cases. The case studies, on the other hand, illustrate individual cases that have actually been handled by the firm, with data and details anonymised to ensure client confidentiality.
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Adozione di maggiorenne per riconoscere un rapporto familiare di fatto
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Contratto di convivenza per coppia italo-brasiliana: tutela patrimonio e permesso di soggiorno
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Pianificazione successoria azienda familiare: passaggio generazionale da 3 milioni
Un imprenditore di sessantadue anni deve trasferire un’azienda da 50 dipendenti al figlio che la gestisce, tutelando la figlia che ha scelto un altro percorso. Patto di famiglia e holding per garantire continuità.
Adozione internazionale da parte di single: quando la legge apre una strada che pochi conoscono
Una donna single di quarantacinque anni intraprende l’adozione internazionale. Un percorso giuridicamente possibile ma poco conosciuto, che richiede una strategia legale specifica fin dal decreto di idoneità.
Eredità digitale: gestione criptovalute e asset digitali del defunto
Un professionista muore lasciando criptovalute per oltre 600.000 euro su wallet e exchange, senza istruzioni di accesso. Un patrimonio digitale che rischiava di andare perduto per sempre.
Rettifica del nome per persona transgender: documenti coerenti con la propria identità
Una professionista trentaduenne, in trattamento ormonale da otto anni, con documenti ancora al nome maschile di nascita. La discrepanza anagrafica generava outing forzati quotidiani in ambito lavorativo, bancario e amministrativo.
Attribuzione di sesso e aggiornamento di oltre 20 documenti: dalla sentenza alla nuova identità anagrafica
Un dirigente di 45 anni con sentenza di rettificazione già ottenuta si trova davanti al vero ostacolo: coordinare carta d’identità, patente, laurea, contratti di lavoro, mutuo e polizze assicurative presso enti con procedure non uniformate.
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.
