Joint custody

On 16 March 2006 law no. 54/’06 went into force in Italy, giving force to the most important reform of family law in the last 30 years.
With it, on the example of the more advanced cultural models, the legislator, noting the increasing incidence of separation between spouses in the social fabric, finally conceived of a much more far-reaching and balanced discipline than in the past, with the purpose of normalizing, as much as possible and in a fair way that would preserve relationships within the family, the life of the people involved by the separation (parents and children).
With the new law, joint custody of the children becomes the absolutely prevalent rule, representing the goal so that the separation of the couple does not have the consequence, for the child, of losing the parent.

It is sanctioned by the principle (a real, enforceable right for the children) to two parents.

The previous practice of assigning the children to one of the parents only, with the other parent (usually the father) forced to submit to the requirements of the other parent as regard the regularity of relations with the children, lent itself to abuse by the spouse to whom the children were assigned in cases in which the level of conflict after the separation remained high. The inevitable consequence consisted of the gradual deterioration of the relationship binding the minor to the other parent, to the extent even of a complete loss of one of the two parents.

We have seen a high frequency of cases in which the parent with custody communicates to the children (sometimes without realizing it) the hostility felt toward the other spouse, making it more difficult to exercise visitation rights and every other relationship; it used to happen in the more conflict-ridden cases that the parent without custody ended by undergoing a separation from the children even greater than foreseen by the judge, until they were persuaded to reduce or cease contacts with them in order to avoid for themselves and the children the persistence of a situation of severe unpleasantness.
The current principle of dual parenting (reinforced by the sanctions applied to the parent who hinders it), tells us that – more than anything else – the interest of the child come first, in maintaining stable, full and continuous relations with both parents.
But that is not all: the minors have just as much right to maintain significant relations with the grandparents and other relatives of each branch of the family.
Here are the most practical consequences of the new law:

• each parent, in the periods of custody, has the full power (and duty) to provide for the education of the children and (except for the most significant decisions such as the choice of the school, which must be made by mutual agreement) may teach them his or her own principles, even if not strictly in agreement with those of the other parent. It is a value and enrichment for the child to grow up with an educational background that includes the experience of both parents
• though providing for the time of custody of one and the other parent (the practice still used by most of our courts), free access must be allowed (in terms of location, visiting right, etc.) in parent/child relation, even outside the period of custody
• the provision of contribution for maintenance by the economically stronger spouse is moderated in consideration of the time each spends with the children, during which each must provide for the necessities (food and clothing) for the daily live of the children.
• A prevalent residence is generally contemplated however (so-called “placement”) of the children, preferably at the family home which is already familiar to them.
• Custody by a single parent remains only as an entirely residual hypothesis that may be ordered only in extreme cases in which it is proven that the presence of one of the two parents is contrary to the interests of the minor. The absolute rarity of these cases (such as criminal behavior by one of the parents, a parent who is a drug addict and demonstrably inappropriate parent, etc.) is confirmed by the provision for condemning the parent requesting single-parent custody to repaying the costs of the dispute as well as damages suffered by the other spouse, if the request is shown to have been made without proper grounds.

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