Shared custody: what the court decides

Few questions arising from a separation generate as much anxiety as the one about how the children will be cared for. Italian law starts from a clear assumption: a child has the right to maintain a stable, continuous and balanced relationship with both parents, even where those parents no longer live together. The legal architecture built around that principle, codified in Articles 337-bis and following of the Italian Civil Code, gives shared custody (affidamento condiviso) the status of general rule and treats sole custody (affidamento esclusivo) as a reasoned exception. Understanding the difference, and the criteria the courts apply when departing from the rule, helps clarify what is really at stake in a contested case.

The shared-custody principle

Shared custody was introduced into Italian law in 2006, with Law 54/2006, and is now codified in Article 337-ter of the Civil Code. The provision is straightforward: in the event of separation, divorce or end of cohabitation between parents, the judge entrusts the children to both parents jointly. Parental responsibility, the cluster of duties and powers connected to the upbringing, education, healthcare and overall well-being of the child, is exercised by both parents and, in matters of ordinary administration, may be exercised separately by either of them. Decisions of greater importance, including those on schooling, healthcare other than routine, and habitual residence, must be taken jointly.

A point that often surprises clients, particularly those familiar with common-law systems, is that shared custody under Italian law does not imply equal physical time with the children. The child has a single habitual residence, called collocamento, with one of the parents, and a structured pattern of time with the other. The split between weeks, weekends, holidays and summer breaks is shaped to fit the family’s geography, the children’s school commitments and their developmental needs. The fact that one parent is the placement parent does not weaken the other’s parental responsibility, which remains full and equal.

The Court of Cassation has consistently reinforced this construction. In judgment no. 18287/2018, the Joint Civil Divisions made it clear that the child’s best interests are the guiding light of every decision, and that any departure from the shared-custody model requires rigorous reasoning. The same principle has been confirmed and refined in subsequent rulings, including those addressing the effects of distance between parental homes, high-conflict relationships and the practical organisation of school holidays.

When sole custody is ordered

Article 337-quater of the Italian Civil Code allows the judge to depart from the shared-custody rule and to entrust the child to one parent alone where shared custody would be contrary to the child’s best interests. The provision deliberately uses an open-textured criterion, and the case law has progressively given it content. The departure from the rule is not justified by mere conflict between the parents, however intense, nor by the geographical distance between their homes, nor by the simple preference of one parent for a sole-custody arrangement.

What the courts have identified as a sufficient ground for sole custody is a situation in which one parent is objectively unable or unwilling to exercise parental responsibility in a manner consistent with the child’s interest. Typical examples include prolonged disengagement from the child’s life, recurrent behaviour that exposes the child to physical or emotional harm, serious mental-health issues that are not being adequately addressed and substance-abuse problems that interfere with the parental role. The Cartabia Reform has not changed the substantive criterion but has tightened the procedural side, requiring the judge to give specific reasons whenever sole custody is ordered and to consider less drastic measures, such as supervised visitation or social-services support, before resorting to it.

Within the sole-custody framework, the law preserves a residual role for the non-custodial parent. Decisions of major importance for the child must still, in principle, be taken jointly unless the court has expressly excluded that as well; the non-custodial parent retains the right to be informed of the child’s life and the duty to contribute to maintenance. Sole custody, in other words, is a recalibration of responsibility, not a severance of the parental tie.

Hearing the child

Whatever custody arrangement is being considered, the child’s own voice is now a structural element of the proceeding. Legislative Decree 149/2022, the Cartabia Reform, has made the hearing of children mandatory from age twelve and, where the child is capable of discernment, also at younger ages. The hearing is conducted by the judge, in conditions suited to the child’s age and maturity, and may be supported by a court-appointed psychological expert and by a curator speciale del minore where there is a potential conflict between the child’s interests and those of the parents.

The hearing is not a vote on which parent the child prefers, and Italian judges are alert to signs of suggestion or instrumentalisation. What the hearing aims to bring out is the child’s lived experience of the family situation, the child’s understanding of what is being decided and any clearly expressed wishes that can be assessed in light of the child’s age, maturity and circumstances. The weight given to those wishes increases with the child’s age and degree of autonomy, but they remain one factor among others in a global assessment focused on the child’s best interests.

Modifying a custody arrangement, once it has been decided, is always possible: the relevant rules in Articles 337-quinquies and 710 of the Italian Code of Civil Procedure allow either parent to apply for a variation where the underlying circumstances have changed in a material and lasting way. Studio Legale Lo Torto regularly advises Italian and international parents on the design of sustainable custody arrangements and on the review of arrangements that have ceased to fit the family’s reality, drawing on its experience before the family sections of Milan, Rome and Venice.