ROTTURA DELLA FAMIGLIA E INTERESSE DEI FIGLI EN EL DERECHO CIVIL ITALIANO.

Abstract

Custody of the children when the parents break up is regulated in article 155-155 sexies of the Italian Civil Code. The subject was thoroughly reformed in the recent Act of 8 February 2006. Legislators' growing awareness of the importance of a child's maintaining an assiduous relationship with both parents despite the dissolution of the family nucleus has led to laws that explore different modes of custody from the traditional solution of exclusive custody for only one of the parents. In alternating custody the child spends preset periods of time under the care of just one parent, who holds the exclusive right to exercise parental authority independently of the other parent. Abundant criticism has been rained on this scheme, considering alternating custody arrangements so strong a source of unstable living conditions as to compromise the child's equilibrium. More interest has been aroused by the concept of joint custody. In the absence of a legal definition, joint custody is based on the situation where both spouses exercise shared parental authority over their children, and the children are kept, instructed and educated according to a single standard both parents have agreed upon. In order to put joint custody in practice, case law considers that there are certain necessary conditions, such as the parents' agreement to apply for joint custody, an absence of conflict between the parents, the existence of a homogeneous, compatible lifestyle and nearness of the parents' residences. Nevertheless, these truly demanding prerequisites cannot always be met, when real conditions are dictated by the conflict between the spouses. In many cases only limited use of this sort of measure can therefore be made.