Shared custody and the Cartabia Reform: hearing the child

For decades, Italian family courts treated the hearing of a minor as a discretionary step, ordered when the judge considered it useful and skipped when the case looked simple enough on paper. Legislative Decree 149/2022, widely known as the Cartabia Reform, has changed that posture: the hearing of the child is now a structural feature of any proceeding that touches their life, and its omission must be expressly justified. For international parents living in Milan or elsewhere in Italy, understanding how this rule operates is essential, because the child’s voice can materially influence custody, residence and relocation decisions.

The legal framework

The right of the child to be heard in family proceedings is not a novelty introduced by Italian law alone. It derives from a layered set of sources, beginning with Article 12 of the United Nations Convention on the Rights of the Child and continuing with the European Convention on the Exercise of Children’s Rights, signed in Strasbourg in 1996 and ratified by Italy in 2003. Both instruments treat the hearing as the recognition of the child as a legal subject in the proceedings, not as a witness to be questioned about facts. The child speaks because the decision concerns them, not because they hold evidence.

Italian domestic law absorbed this principle through articles 315-bis and 336-bis of the Italian Civil Code and, on the procedural side, through articles 337-octies and 473-bis.4 of the Code of Civil Procedure as reformulated by the Cartabia Reform. The Court of Cassation, most recently in judgment no. 7891 of 17 March 2025, has reaffirmed that the hearing is a procedural duty whose breach can vitiate the order on custody and visitation arrangements.

In practice, this means that any judge dealing with separation, divorce, custody, parental responsibility or relocation involving a child capable of discernment must hear that child before deciding, unless one of the narrowly defined exceptions applies.

What is new in Legislative Decree 149/2022

Before the Cartabia Reform, the hearing of the child was governed by a patchwork of provisions scattered across different procedural rules, with the result that timing, format and confidentiality varied widely from court to court. Legislative Decree 149/2022 has restructured the matter inside the new unified family proceedings, in force since 28 February 2023, and has set out a clearer protocol.

Three changes stand out. First, the hearing is now expressly mandatory from age twelve and, below that threshold, whenever the judge assesses that the child is capable of discernment. The judge who decides not to proceed with the hearing must give specific reasons, and a generic reference to the child’s young age is no longer enough. Second, the reform has reinforced procedural safeguards: the hearing must take place in conditions suited to the child’s age and maturity, in a child-friendly environment, and the child must be informed in advance of the subject matter, the purpose and the possible outcomes of the conversation. Third, the role of the curator speciale del minore, a court-appointed guardian for the child’s procedural interests, has been generalised whenever there is a potential conflict of interest with the parents.

A further practical consequence concerns the record of the hearing. The reform has codified the use of audiovisual recording, where appropriate, and has clarified that the parents and their lawyers have a right to know the substantive content of what the child said, while the verbatim transcript may be screened to preserve the child’s emotional safety. This balance between transparency and protection is a defining feature of the new regime.

Practical application

In day-to-day practice before the Court of Milan and other Lombard family sections, the hearing is normally scheduled after the first appearance of the parties, once the procedural framework has been set and the judge has a clear picture of the disputed issues. The conversation usually takes place in a dedicated room, in the presence of the judge and, where useful, of a psychologist appointed as a court expert. The parents and their lawyers are not present in the room, but the lawyers may submit in advance a list of points they would like the judge to explore.

The Cartabia Reform has not turned the child into an arbiter of the parental conflict. The judge listens, records the views expressed and weighs them in light of the child’s age, maturity and degree of autonomy, but the decision on custody, residence and visitation remains a judicial assessment grounded in the child’s best interests. A teenager’s preference for one parent over the other, for example, will be relevant but not conclusive, particularly where the judge identifies signs of suggestion or pressure. Conversely, a clearly expressed and well-founded objection to a proposed arrangement, such as an international relocation, can be decisive.

For international families, two practical points deserve attention. The hearing is conducted in Italian, with the assistance of an interpreter where the child is more comfortable in another language; the choice of interpreter is made by the court and not by the parents, precisely to preserve the child’s freedom of expression. And the content of the hearing, once it has been processed by the judge, may travel with the case file in cross-border proceedings under EU Regulation 2019/1111 (Brussels II ter), so what is said in Milan can have direct effects on parallel or subsequent proceedings abroad.

Studio Legale Lo Torto regularly assists Italian and foreign families navigating the new rules on the hearing of the child, both in contentious custody cases and in cross-border matters handled out of its Milan, Rome and Venice offices, with particular attention to preparing parents for the hearing itself rather than around it.