Liability and compensation for intra-family damage in Italy
- Liability and compensation for intra-family damage in Italy
- Jurisdiction and applicable law
- Parental responsibility in the international sphere
- Jurisdiction and applicable law
- Property regime of the civil union
- Dissolution of the civil union
- International child abduction
- Protection of minors in cases of cross-border family conflicts
- Legal advice to resolve international family conflicts
Intra-family damage represents a category of non-pecuniary damage that has gained recognition relatively recently, in response to social changes and the need to adapt the legal system to new protection requirements within the family. This institution is configured as an additional protection tool for family members in cases of violation of family duties of broad scope, of liability and compensation for intra-family damage.
In recent years, the traditional conception of conjugal and parental duties has been overcome. Awareness of the legal nature of such obligations, provided for by art. 143 c.c. in relation to collaboration, cohabitation, assistance and fidelity, has led to the recognition that their violation cannot be sanctioned exclusively with the typical remedies of family law.
This has made it possible to break the binomial “family-liability” and to apply to the family the rules of civil liability, when the violation of family obligations causes a violation of constitutionally guaranteed rights. Such violation can constitute a civil tort that can be compensated under art. 2059 c.c., especially when it alters family relationships or affects fundamental rights of the person, such as the right to the parent-child relationship.
Within the case of intra-family damage fall both conjugal or union relationships, and parental relationships. Two types of unlawful conduct can also be distinguished: permanent ones, such as the moral or material abandonment of the minor, and instantaneous ones, such as single violations of family duties.
In the field of parental responsibility, the legislation establishes an “automatic mechanism” between procreation and parental duties. The obligation to maintain, educate and take care of children arises at the moment of their birth, constituting a fundamental element of the family relationship. This duty corresponds to the right of the offspring to receive protection and care, as well as to maintain a continuous relationship with both parents.
The principle of shared parenting, recognised by art. 30 of the Constitution, in fact establishes that both parents are obliged to maintain, instruct and educate the children. The violation of such obligations can cause non-pecuniary damages that can be compensated, not only towards the child but also towards the parent who remains to take care of them alone.
An absent parent cannot justify their non-fulfilment by claiming that the other parent has also not respected their obligations. The liability arising from the relationship of filiation falls on both parents in an integral and independent manner.
For example, even when a child is initially recognised by only one of the parents, the other remains nevertheless obliged to contribute to their maintenance from birth, regardless of a subsequent judicial declaration of recognition.
Finally, if both parents contribute, with different behaviours, to violating their duties, they are considered jointly and severally liable for compensation for the damage suffered by the child.
In such cases, the parent who pays the entire compensation can exercise the right of recourse against the other, pursuant to art. 2055, paragraph II, c.c.
Conditions for the compensability of the damage
In order for a violation of the obligations provided for by art. 143 c.c. to lead to compensation for damage, the mere non-observance of such duties is not sufficient. It is important to underline that compensation does not derive automatically from the violation, not even in the case in which an attribution of fault is pronounced in the separation. Indeed, the attribution of fault could be ordered without the prerequisites required for compensation existing.
For liability under art. 2059 c.c. to be configured, specific requirements must coexist, assessed on a case-by-case basis.
In particular, for the recognition of compensation in the case of intra-family damage, it is necessary that the unlawful conduct:
- Produces unjust damage: the damage must fall within the category of non-pecuniary damage, with existential relevance. This must be assessed on the basis of the case file, taking into account the seriousness and duration of the violations and the negative consequences on the life and the psycho-physical well-being of the persons involved, whether they be spouse or children.
- Violates a fundamental right of constitutional rank: the conduct must violate a constitutionally protected right, such as the dignity of the person, and must be characterised by particular seriousness. For example, it may consist of offensive, insulting or violent behaviours, or of repeated intimidating acts that constitute criminal offences pursuant to articles 612, 594 and 581 of the criminal code.
A classic example concerns the violation of the duty of conjugal fidelity. In these cases, the judge must balance the position of the spouse who requests compensation with the rights of the spouse responsible for the violation. The latter, in fact, retains the right to self-determination in the private and family sphere, as well as the freedom to make sentimental choices, which cannot be coerced.
This balancing highlights that, although the right to the conservation of the conjugal union prevails within the family law system, finding adequate sanction in the attribution of fault in the separation, this does not necessarily imply that the right to the integrity of family life must prevail outside this sphere. Consequently, the mere violation of the duty of fidelity is not, in itself, sufficient to justify a sentence to compensation for damage.
Examples of intra-family wrongdoing
Intra-family damage manifests itself through various situations, recognised as wrongs susceptible to compensation, including:
- Failure to recognise and parental disinterest: When a parent, after procreation, does not recognise the child nor fulfils their obligations of maintenance, education and instruction. This behaviour can include a total disinterest towards the minor, constituting a violation of parental obligations.
- Continuous abandonment of the minor: In the case of a parent who abandons a child during the first months of life and continues with such conduct, the damage is particularly significant. The repercussions include inner suffering caused by the absence of the parental figure and a negative impact on the psychological development of the child, especially if the parent has deliberately neglected the minor in order to dedicate themselves to other children.
- Deprivation of the parental figure: Even in the presence of regular maintenance, the absence of emotional and moral support from a parent can deprive the child of opportunities for personal growth and psychophysical development, limiting the experiences that could have enriched their life.
- Lack of support for education and growth: The lack of moral and material support can prevent the child from undertaking secondary or university studies, further aggravating the situation when a parent moves away from the family to create a new family unit, causing serious emotional consequences in adoptive children already troubled by previous situations of abandonment.
- Denial of paternity: When a father, although aware of the procreation, refuses to recognise the child, such conduct constitutes a wrong. The awareness of paternity does not derive only from scientific proof, but also from circumstances that the parent should have considered with responsibility.
- Non-fulfilment after separation: After a separation, a parent who does not respect the judicial provisions on maintenance and refuses to cultivate an emotional relationship with the children, despite the judge’s measures, commits an intra-family wrong. Such behaviour is further aggravated by a wilful refusal of any contact.
- Violation of the duty of conjugal fidelity: Even in the absence of a formal attribution of fault, the violation of the duty of fidelity can give rise to compensation for damages between family members, provided that the suffering caused to the spouse exceeds the limit of tolerability, translating into an injury to the right to health, dignity or honour. However, the pronouncement of attribution of fault does not automatically imply a right to compensation, with the verification of the prerequisites provided for by art. 2059 c.c. always being required.
- Public offences to conjugal dignity: Public statements, such as the announcement of an extramarital affair or insults addressed to the spouse through social media, can damage the reputation and dignity of the partner, causing compensable psychological damage.
- Non-fulfilment of the conditions of separation or divorce: The systematic evasion of measures on custody or hostile attitudes towards the other parent, such as those determining damage from parental alienation or repeated threats, represent significant violations. These behaviours can create anxiety and worry in the other parent or alienate the child from the relationship with one of the parents.
- Insults to the spouse’s family members: Offences addressed not directly to the spouse but to their parents can nevertheless represent an injury to the dignity of the partner, especially when there is a close family bond. Such conduct is considered a lack of respect and a violation of the principles of human dignity.
These examples highlight how intra-family damage can manifest itself in various forms, requiring an in-depth assessment on a case-by-case basis to establish the extent of the prejudice and the adequacy of the compensation.
Quantification of the damage
Determining the value of compensation for non-pecuniary parental damage is a complex operation, which requires an approach based on presumptions and on common-experience notions.
Boschetti Studio Legale can take care of this quantification for you, taking into account the specificity of the case, adapting the compensation parameters to the concrete circumstances.
When dealing with the violation of the child’s right to recognition and to the parental relationship, compensation is due both for damage to health, if proven, and for the violation of the parental relationship. The latter, distinct from damage to health, occurs when the parents fail in their obligations of care, moral assistance, instruction and maintenance. In such situations, the damage is quantified equitably, using as a reference the Tables of the Court of Milan relating to the “loss of the parent” by death, suitably modified to reflect this different case.
The timing between the harmful event and the start of the proceedings cannot be a reason to reduce the amount of the compensation. This type of wrong, in fact, has a significant and lasting impact on the psychological balance of the victim, making the damage particularly serious and worthy of full consideration.
In the case of disintegration of the marriage attributable to a wrong of one of the spouses, the damage suffered by the partner can also be assessed by applying the Tables of the Court of Milan, normally used for the loss of the parental relationship. However, a personalisation of the compensation is necessary, by introducing corrective coefficients that allow the table values to be adapted to the particularity of this situation.
The personalisation of the damage represents a fundamental element for the determination of the compensation. The specific circumstances that justify such personalisation must be documented and proven in detail, not limiting themselves to generic or hypothetical statements. The damage must be of significant magnitude, such as to cause a relevant change in daily living habits, both within the family and in social relations. The inner suffering deriving from such events, if assessable through presumptions and rules of common experience, can constitute a solid basis for the quantification of the compensation.
Statute of limitations
Intra-family damage, falling within the category of Aquilian tort, is subject to the five-year limitation period provided for by art. 2947 c.c., which begins to run from the moment in which the harmful event occurs.
Case law distinguishes two types of intra-family wrong to determine the dies a quo from which the limitation period runs. In the case of a wrong with instantaneous effects, such as a single conduct in breach of parental obligations, the limitation period starts from the very moment in which the violation occurs. Conversely, for an intra-family wrong of a permanent nature, such as the prolonged abandonment of a minor, the limitation period runs from the moment in which the child acquires awareness of the harmfulness of the parent’s behaviour.
Particularly significant is the case of prolonged parental abandonment, which represents a form of complex wrong. In such situations, the right to compensation takes on a peculiar nature, linked to the capacity of the injured party to recognise and act with respect to the damage suffered. Since the harmful behaviour generates a prejudice that is not only material but also psychological-existential, which deeply affects the formation of personality and the capacity for self-defence of the victim, the exercise of the right to compensation is justifiable even at a great distance in time from the initial event. This is closely correlated to the maturation of personal awareness of the damage suffered, an element that can manifest itself even in adulthood.
Procedural aspects
The absence of a parent, constituting a violation of one of the fundamental duties of parenthood, makes legitimate the bringing of a compensation claim with regard to which Boschetti Studio Legale can represent you.
This may be brought by the adult child who is not economically self-sufficient or, in the case of a minor or of a person with serious disability, through their legal representative. Such action is based on the violation of inviolable rights linked to the care, education and moral and material assistance that the parental figure is required to ensure.
Such compensation claim can also be presented within the framework of the chamber proceedings provided for by art. 709 ter c.p.c., without the need to start a separate civil tort action.
Art. 709 ter c.p.c., in fact, allows the judge to examine an ordinary claim through a special proceeding, ensuring greater speed in the protection of rights.
In this context, the chamber proceeding ensures a streamlined and functional approach to resolve family disputes, while maintaining the ability to ensure full and effective protection. The decisions taken in this context have a decisional character and may acquire force of res judicata, thus consolidating the rights of the child against the non-fulfilling parent.
Furthermore, the lawyers of our team can also formulate the request for compensation within the framework of an action for the judicial recognition of paternity or maternity, adding a further level of protection for the child against the non-fulfilling parent.
Such combination of actions allows the addressing, in an integrated manner, of both the profile of legal recognition of the parental bond and that of the reparation of the damages suffered, offering a complete framework of protection. This can be particularly significant in situations in which the parent has also denied the recognition of their parental responsibility.
This implies that, in the case in which one wishes to act for compensation for damages linked to the violation of parental duties, it is fundamental to carefully assess the most appropriate procedural strategy, taking into account the implications of each choice in terms of times, costs and effective legal protection.
Burden of proof
To obtain compensation, the requesting party must demonstrate, also through testimony, that the parent’s behaviour has exceeded the threshold of tolerability, causing a violation of constitutionally protected rights, such as dignity, health or honour.
They must also prove the causal link between the unlawful behaviour and the damage suffered, clarifying how the negligent or wilful conduct of the parent has determined the prejudice.
Intra-family damage, being an extra-contractual tort, follows the ordinary evidentiary rules provided for by art. 2043 c.c., according to which the injured party has the burden of proving:
- The existence of the damage;
- The causal link between the unlawful conduct and the damage;
- The negligent or wilful nature of the parent’s behaviour.
In the specific case of a parent who shows disinterest towards the child, it is necessary to prove not only the parental non-fulfilment, but also the harmful consequences that have derived from it for the child.
It is not enough to deduce the parent’s absence: it is necessary to indicate and demonstrate how this has had a negative impact on the life, development and psychological well-being of the child.
Jurisdiction and applicable law
Identifying jurisdiction and the applicable law is a fundamental step to ensure the protection of the rights of minors in international contexts, especially in cases of intra-family damage.
In cross-border conflicts, the determination of these elements must take into account the habitual residence of the minor, as established by Regolamento Bruxelles II-ter (Reg. UE 2019/1111), which regulates jurisdiction in the countries of the European Union. However, in particular situations, such as international child abduction or emergency circumstances, exceptions can be applied that transfer jurisdiction to other States, ensuring a flexible management aimed at the protection of the minor.
At a global level, the 1996 Hague Convention on parental responsibility and the protection of children offers a further regulatory framework for addressing international disputes, strengthening cooperation between the signatory States and placing the well-being of the minor at the centre of decisions. The interaction between these regulations and private international law requires particular attention, especially for cases in which the rights of minors intertwine with conflict-of-laws issues.
The applicable law, generally determined on the basis of the principle of the place where the damage occurred (lex loci damni), must be interpreted in the light of the specificities of the case and of the higher interest of the minor.
This principle is central, as reaffirmed by the Court of Cassation, which has clarified that the rights of the child, including those to maintenance, instruction and moral assistance, arise from birth, regardless of the subsequent formalisation of parental recognition. Such rights find foundation in articles 2, 30 and 31 of the Italian Constitution and in international instruments such as the New York Convention on the Rights of the Child of 1989, confirming their non-derogable and universal nature.
This combination of constitutional and international principles is particularly relevant in cases of international child abduction, in which the right of the child to shared parenting and to family stability must be safeguarded. Instruments such as the 1980 Hague Convention, in synergy with Regolamento Bruxelles II-ter, ensure the return of the minor to the country of habitual residence, protecting their fundamental rights.
In cases of permanent intra-family damage, such as the prolonged disinterest of a parent, jurisdiction can also be determined by the place where the minor has suffered the consequences of the harmful behaviour.
This approach takes into account not only the legal context, but also the emotional and psychological conditions of the minor, strengthening the protection of their rights.
Ultimately, the identification of jurisdiction and of the applicable law in cases of intra-family damage with elements of internationality requires a balance between legal certainty and the higher interest of the minor. This process is not only a technical aspect, but represents a crucial step to ensure effective and personalised protection, capable of responding to the needs of every concrete case.
Parental responsibility in the international sphere
International parental responsibility imposes a series of fundamental obligations deriving directly from the status of parent, including maintenance, education and moral and material assistance to children. These duties are non-derogable and find their foundation not only in national legislation but also in international conventions, which strengthen the protection of minors in the international sphere.
As clarified by the Court of Cassation, such obligations do not lapse even in cases in which the recognition of the child takes place at a moment subsequent to birth. The declaratory judgment of natural filiation, in fact, has retroactive effect, attributing to parents duties that go back to the moment itself of birth. This means that the parental bond is not subordinate to formal recognition, but is intrinsically connected to the fact of procreation.
This principle is particularly relevant in international contexts, where the regulatory differences between the various legal systems can complicate the management of family relationships.
In cases in which a parent resides in another country, international and national rules converge to ensure that the rights of the minor are respected. For example, it is not admissible for a parent to escape from their obligations by claiming that the recognition of the child took place late or that the laws of their country provide for different requirements for the exercise of parenthood. The rights of the minor, enshrined by articles 2, 30 and 31 of the Italian Constitution, are universal and must be protected in every circumstance, regardless of the territorial context.
When a parent violates their duties, the consequences are not limited to the sanctions provided for by family law. Case law has established that such violations can constitute a civil tort pursuant to art. 2059 c.c., opening up the possibility for the child to start an autonomous action for the compensation of non-pecuniary damages. These damages include both the emotional and moral void caused by the absence of the parent and the repercussions on the psychological and personal development of the minor. The protection of these inviolable rights, such as the right to shared parenting and to family stability, takes on primary relevance, prevailing over any personal or economic difficulties claimed by the parent.
In the international sphere, parental responsibility intertwines with a complex regulation that aims to ensure uniform protection of minors. Instruments such as the 1996 Hague Convention and the EU Regulation Bruxelles II-ter provide a clear regulatory framework, establishing that jurisdiction and the application of parental obligations are entrusted to the court of the place of habitual residence of the minor. This approach ensures that cross-border disputes are resolved with maximum attention to the higher interest of the minor.
A particularly significant example concerns families in which the parents reside in different countries and are involved in international conflicts on parental responsibility. In such cases, international rules ensure that the minor can continue to enjoy uniform and consistent protection, regardless of where they are. This principle is essential to ensure that the minor receives the care, education and maintenance necessary for their development, while at the same time respecting the fundamental right to shared parenting.
International parental responsibility, therefore, is not only a legal obligation, but also a pillar for the protection of the rights of minors. National and international rules, integrated by case law, create an effective system to protect the bond between parents and children, even in transnational contexts or in situations of complex family disputes. This ensures full and personalised protection, capable of responding to the needs of each individual case.
Jurisdiction and applicable law
Identifying the jurisdiction and the applicable law is a fundamental step to ensure the protection of the rights of minors in international contexts, especially in cases of intra-family damage.
In cross-border conflicts, the determination of these elements must take into account the
habitual residence of the minor, as established by the EU Regulation Brussels II-ter (Reg. UE
2019/1111), which regulates jurisdiction in European Union countries. However, in particular
situations, such as international child abduction or emergency circumstances, derogations may be applied that transfer jurisdiction to other States, guaranteeing a flexible management aimed at the protection of the minor.
At a global level, the 1996 Hague Convention on parental responsibility and the protection
of minors offers a further regulatory framework to address international disputes, strengthening cooperation between signatory States and placing the welfare of the minor at the center of decisions. The interaction between these regulations and private international law requires particular attention, especially for cases in which the rights of minors intertwine with questions of conflicts of laws.
The applicable law, generally determined on the basis of the principle of the place where the
damage occurred (lex loci damni), must be interpreted in light of the specificities of the case and the best interests of the minor.
This principle is central, as reaffirmed by the Court of Cassation, which clarified that the
rights of the child, including those to maintenance, education, and moral assistance, arise from birth, independently of the subsequent formalization of parental recognition. These rights find their foundation in Articles 2, 30, and 31 of the Italian Constitution and in international instruments such as the 1989 New York Convention on the Rights of the Child, confirming their non-derogable and universal nature.
This combination of constitutional and international principles is particularly relevant in
cases of international child abduction, in which the child’s right to co-parenting and family stability must be safeguarded. Instruments such as the 1980 Hague Convention, in
synergy with the EU Regulation Brussels II-ter, ensure the return of the minor to the country of habitual residence, protecting their fundamental rights.
In cases of permanent intra-family damage, such as the protracted disinterest of a parent,
jurisdiction can also be determined by the place where the minor suffered the consequences of the harmful behavior.
This approach takes into account not only the legal context, but also the emotional and
psychological conditions of the minor, strengthening the protection of their rights.
In short, identifying the jurisdiction and the applicable law in cases of intra-family damage
with international elements requires a balance between legal certainty and the best interests of the minor. This process is not just a technical aspect, but represents a crucial step to guarantee an effective and personalized protection, capable of responding to the needs of each concrete case.
Property regime of the civil union
The 2016 Cirinnà law establishes the property regime for civil unions between persons of the same sex, drawing inspiration from the rules of marriage, but with some specificities. In the absence of a different choice by the parties, the applicable property regime is that of the community of property. This means that the assets acquired during the union become common property, save for exceptions such as personal assets acquired before the establishment of the union (art. 1, comma 13).
The parties have the option to opt for a different regime, such as the separation of property, through a property agreement stipulated in accordance with the provisions of the civil code, in particular articles 162 et seq. The agreement must be formalised by public deed or authenticated private deed, in order to ensure clarity and mutual protection.
The provisions of the law also state that the parties cannot derogate from the rights and duties provided for by the regulation as a result of the civil union. In particular, certain provisions of the civil code apply to civil unions, including those relating to simulation and to the modification of property agreements, as specified in the legislative text.
An important aspect concerns the inheritance regime: the equivalence clause (art. 1, comma 20) extends to civil unions the property provisions provided for spouses. For example, the surviving party has the right to the legitimate share and to participate in the succession of the other party according to the same rules applicable to marriages. Furthermore, social security regulations provide that the surviving partner can benefit from survivor’s pension treatments.
The law also regulates the effects of the dissolution of the civil union. In the event of cessation of the relationship, the dissolution of the community of property follows the rules provided for marriage, ensuring an equitable division and respecting any property agreements in place. The parties must also face any economic obligations, such as the payment of a maintenance allowance in favour of the economically weaker partner, where the prerequisites exist.
Finally, the regulation provides that the information on the chosen property regime be registered in the document attesting the establishment of the civil union, together with the personal data of the parties, of the witnesses and the common residence. This ensures transparency and enforceability against third parties.
The property regime of civil unions is thus configured as a flexible and protective instrument, which allows the parties to manage their assets and economic responsibilities in an equitable manner and in conformity with their personal choices.
Dissolution of the civil union
The dissolution of a civil union can take place for various reasons, including the will of the parties, the death of one of the partners or the registry rectification of sex. The law regulates the procedure to ensure equitable treatment in conformity with family law regulations.
The parties can decide to dissolve the civil union by manifesting their will before the civil status officer, even separately. Subsequently, after at least three months have elapsed, one of the parties can submit a formal application for dissolution to the competent court (art. 1, comma 24). This interval was introduced to allow a period of reflection before the definitive formalisation of the separation.
In the event of the death of one of the partners, the dissolution of the union takes place automatically. The same principle applies if presumed death is declared. Furthermore, a judgment of rectification of sex of one of the two partners entails the dissolution of the civil union, unless the partners have expressed the will to convert the bond into marriage.
The law refers to certain provisions already provided for marriage, such as those of legge n. 898 of 1970 on divorce, adapting them to the context of civil unions (art. 1, comma 25). For example, property division follows rules similar to those provided for spouses, taking into account any property agreements in place and the economic needs of the economically weaker partner.
It is provided that the judge may establish economic obligations between the parties, such as a maintenance allowance, where one of the two finds themselves in a condition of particular economic fragility at the moment of dissolution. Such obligations are assessed on the basis of the duration of the union and of the personal and economic circumstances of the parties.
Boschetti Studio Legale, with its team of lawyers experienced in family law, offers complete assistance for the procedures of dissolution of civil unions. The firm supports clients in managing all legal aspects, including property negotiation, dispute resolution and the definition of maintenance agreements. Furthermore, it provides personalised advice to address complex cases, such as those linked to the registry rectification of sex or to the division of common assets. Thanks to a professional approach attentive to the needs of clients, Boschetti Studio Legale guarantees an effective assistance respectful of the rights of the parties involved.
International child abduction
International child abduction constitutes one of the most serious forms of intra-family damage, characterised by the unlawful transfer or retention of a minor by one parent in a State different from that of habitual residence, without the consent of the other parent or in violation of a judicial measure. This behaviour not only infringes the right of the minor to shared parenting, but profoundly compromises their emotional and psychological balance, often causing traumas that are difficult to overcome.
International law recognises the seriousness of this situation and provides specific instruments to address it, such as the 1980 Hague Convention on international child abduction, which aims to ensure the immediate return of the minor to the place of habitual residence and to prevent situations in which parental conflicts turn into permanent damage for the child. This instrument applies in many States of the world and establishes mechanisms of cooperation between the central authorities of the countries involved, promoting a rapid and effective resolution.
Despite this, the challenges remain significant. Cases of international abduction require expert legal management to overcome the divergences between national legal systems and ensure respect for the principle of the higher interest of the minor. In many cases, the return of the child can be hindered by unfounded accusations, procedural delays or the failure of some States to adhere to the Hague Convention, further complicating the situation.
The consequences for the minor can be devastating: the sudden separation from one of the parents, the removal from their environment and the instability deriving from such conflicts can have lasting repercussions on their psychophysical well-being. For this reason, it is essential that the parents and the authorities involved act in a rapid and coordinated manner, adopting all the measures necessary to restore a situation of normality.
A lawyer to deal with a case of international child abduction is indispensable not only for the understanding and exact application of international legal rules, but also to address all the difficulties with a sensitive approach that takes into account the delicate emotional balance of the minor. The protection of their rights must remain the absolute priority, ensuring that the conflict between the parents does not translate into irreversible damage for the child.
Protection of minors in cases of cross-border family conflicts
The protection of minors in contexts of cross-border family conflicts represents an absolute priority, being closely linked to the protection of their fundamental rights. Among these rights stand out that to care, to moral assistance and to economic support from both parents.
The Supreme Court has repeatedly reaffirmed that the obligation of maintenance, instruction and education of children arises automatically at birth, regardless of the formal recognition of the bond of filiation. This principle is based on the centrality of the higher interest of the minor, which must prevail over any conflict between the adults involved.
In cases of transnational conflicts, the protection of the minor inevitably intertwines with the complexity of private international law and of international conventions. Instruments such as the Regolamento Bruxelles II-ter and the 1996 Hague Convention were conceived to harmonise national rules and to ensure that the rights of children are respected in a uniform manner, even when the parents reside in different States or belong to different legal systems.
These instruments place the emphasis on the principle of the place of habitual residence of the minor as a criterion to identify the competent jurisdiction (so-called “forum of toys”), ensuring stability and continuity in the management of family disputes.
The right of the child to be educated and maintained cannot be subordinated to situations of conflict between the parents, which must never prejudice the well-being of the minor. For example, even in cases in which a parent tries to evade their obligations by moving abroad or by invoking regulatory differences between States, the minor maintains the inalienable right to receive support and assistance from both parents. International regulations require that the rights of minors be guaranteed without interruption, avoiding family conflicts being able to translate into emotional or material damage for the child.
Shared parenting, understood as the right of the child to maintain a stable and significant relationship with both parents, is a cardinal principle in this field. Even in cases of international child abduction or of unlawful transfers, the regulatory and judicial systems of the various countries must collaborate to ensure the return of the minor to their habitual life context, protecting their psychological and social balance. The violation of these rights can constitute intra-family damage, giving rise to compensation requests that aim not only to repair the prejudice suffered by the minor, but also to reaffirm the importance of respect for parental duties.
In conclusion, the protection of minors in the case of cross-border family conflicts requires an integrated legal approach, which combines the solidity of national rules with the effectiveness of international instruments. Only a coordinated action between States and a rigorous application of fundamental principles can ensure that the rights of minors remain intangible, providing them with adequate protection and ensuring that their well-being prevails over every other consideration.
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.
Registrazione del contratto di convivenza e regolarizzazione del partner straniero
Coppia residente a Roma: cittadino italiano e compagna straniera priva di documenti di soggiorno. Ricorso cautelare ex art. 700 c.p.c. per tutela della convivenza, seguito da pratica per carta di soggiorno familiare UE.
Adozione di maggiorenne per riconoscere un rapporto familiare di fatto
Cittadino statunitense residente a Roma con legame affettivo stabile con lo zio acquisito. Procedimento per adozione di persona maggiorenne ex artt. 291 e ss. del Codice Civile per formalizzare il rapporto familiare.
Contratto di convivenza per coppia italo-brasiliana: tutela patrimonio e permesso di soggiorno
Imprenditore italiano e compagna brasiliana conviventi da tre anni a Milano. Tre vulnerabilità interconnesse: migratoria, patrimoniale e successoria, risolte con un intervento coordinato su tre fronti paralleli.
Adozione in Colombia: coppia italiana realizza il sogno dopo 3 anni di percorso
Una coppia sposata da otto anni intraprende l’adozione internazionale con la Colombia. Un percorso attraverso due ordinamenti, tre istituzioni italiane e l’autorità centrale colombiana.
Successione con eredi in 4 paesi diversi: coordinamento Italia-USA-UK-Svizzera
Un imprenditore italiano lascia un patrimonio distribuito tra Italia, Stati Uniti e Svizzera, con quattro eredi in altrettanti paesi. Quattro ordinamenti, quattro sistemi fiscali da coordinare in parallelo.
Adozione maggiorenne figlio del partner: riconoscimento legame affettivo ventennale
Un uomo di cinquantotto anni chiede di adottare il figlio trentenne della moglie, cresciuto insieme da vent’anni. Un legame reale che la legge non riconosceva, con implicazioni successorie per i figli biologici.
Impugnazione testamento per lesione di legittima: recuperati 800.000 euro per gli eredi
Due figli ricevono 20.000 euro ciascuno da un testamento che lascia quasi tutto alla seconda moglie del padre. Un’azione di riduzione per lesione della quota di legittima risolta in mediazione.
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.
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Legal advice to resolve international family conflicts
Facing an international family conflict or a case of intra-family damage abroad can be an emotionally and psychologically overwhelming experience. The feeling of loneliness and the complexity of the rules that regulate these situations can seem insurmountable.
Boschetti Studio Legale, with its team of lawyers experienced in international family law, is the law firm to make the difference. You are not alone: we are at your side to lighten the weight of these conflicts and to protect your rights and those of your family.
Every situation is different and requires dedicated and personalised attention, whether it concerns violations of parental obligations, international child abduction or requests for compensation for damages within the family; our approach is calibrated to measure to respond to your specific needs.
We know how delicate a situation involving family bonds is, and our objective is not only to obtain concrete legal results, but also to offer you the human support you need during this journey.
Boschetti Studio Legale combines legal expertise and sensitivity to ensure that your rights and those of your loved ones are protected at the highest level, even in cases of liability and compensation for intra-family damage. With a solid experience in the most complex transnational issues, we take care of every legal detail, allowing you to concentrate on what really counts: the well-being of your family. We will guide you through national and international regulations, explaining each step with clarity, so as to make the process less overwhelming and more understandable.
Trusting us means choosing a team that fights for you and that places your interest at the centre. Our mission is to protect what you hold most dear, restoring fairness and justice in situations that seem impossible to resolve.
The first step towards the protection of your rights is to entrust yourself to those who know how to defend them with competence, discretion and passion. We are ready to fight for you and for your family. With Boschetti Studio Legale, you do not face these challenges alone: you have at your side a reliable, experienced and determined guide.
Fill in the form to allow us to assess your case. We will contact you back within 48 working hours to inform you whether and how we can assist you.
This form is reserved for those who need legal assistance on a concrete situation. We do not provide free advice nor answers to generic queries by email. If you have a case that requires professional assessment, fill in the form: we will contact you back for a first exploratory meeting.
Via dei Gracchi, 151
00192 Rome – Italy
info@familylawboschetti.com
Phone: + 39 – 06 889 21971
By appointment only
Days: Monday – Friday
Opening hours: 9.00–13.00 / 16.00–20.00
