How can your prepare child relocation from or within Italy? What if your child has been relocated without your consent?
Italy is a member of the Hague Convention on Child Abduction.
Italy is part of Europe. The judgments of the European Court of Justice apply. And the Council Regulation (EC) No 2019/1111 of 29 June 2019 (Brussels II ter) is valid in Italy.
We will explain what this means for your options.
Lawyers and mediators in Italy
We provide a list of lawyers and mediators in Italy who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental authority: Italy
In principle both parents have parental responsibility over the child (article 315-bis and 316 of the Italian Civil Code), which means that they must share the decision making proces. It does not matter whether the child was born during a marriage or not. If the parents are not married, it is necessary to recognize the child and to be registrered on the birth certificate to have parental responsibility.
After a divorce, parents in principle retain joint parental responsibility (joint custody).
A parent who does not excercise parental responsibility does not have a role in taking the decisons about the child. He or she however does have the duty to supervise the child’s upbringing, education and condition of life.
Traveling with children: Italy
If you want to travel abroad with your child, you need permission from the other parent, if the other parent also has parental responsibility.
You also need permission from the other parent to apply for a passport of the child. This permission must be given in writing to the Passports’ Officer. If there is no written permission, authorisation to obtain a passport for the child, can be asked from the court.
Even very young children need a personal passport to travel abroad. Children under 14 can only travel abroad in the presence of one of their parents. This parent must be able to proof that he or she is the parent. It is possible to have the names of the parents noted mentioned in the passport of the minor. Otherwise, the parent will need to show a birth certificate, a family status certificate or a court decision to proof the family relation.
You can read about obtaining a passport and traveling with children on the website of the Ministry of the Interior of Italy.
Child relocation: Italy
Permission to relocate
If a parent wants to move with the child, he or she must have the consent of the other parent. Because of article 337 of the Italian Civil Code a decision about relocaion must be made by both parents, whether they have joint custody or exclusive custody.
If the other parent refuses to give permission, the parent who wants to move can request permission (authorisation) from the court. The court will consider if relocation is in the best interests of the child.
In previous cases, these are the relevant criteria that the Family Court uses to make a decision:
- the motivation for the relocation
- the consequences of the relocation on the terms and methods of the other parent’s visitation rights
- whether or not the other parent is able to also relocate (close) to the new location
- whether the relocation will permit or impede the minor’s ability to maintain a relationship with the families of both parents
- the impact of the relocation on the child’s environmental, emotional, psychological and relational stabilty (No authorisation is to be expected if the relocation involves significant changes but is not intende to be definite and if further changes can be expected, and if the relocation is only based on the demands of the relocating parent.)
- the social and family environment at the new location
- the age of the child (where young the court thinks that with young children the connection to the other parent should be stronger, as the relationship is then still growing)
- the wishes of the minor, if the minor is old and/or mature enough.
Both parents can start a court procedure, to obtain authorisation for relocation or to prevent or undo (overrule) relocation, both before or after the relocation occurs. In these procedings the court wil listen to the child if the child is 12 or older or if it seems capable of understanding the impact) and take it’s wishes and feelings into consideration. This can be done by talking to the child or by using the assistance of a psychologist to ascertain the child’s wishes and feelings.
Relocating a child without permission from the other parent or the court, can have serious consequences, which can be decided on by the family court. The court can a.o. decide to change the custody conditions or the residence of the child.
Child abduction: Italy
Italy is a party to the Hague Convention on Child Abduction. The obligations that the convention creates are elaborated in the implementation act: Act n. 64 of 15 January 1994.
For more information, you can contact the Central Authority This is a first point of contact if you want your children to be returned. They will forward your request for the children to be returned to the other parent to seek a volutary return. You are not obliged to contact the Central Authority first.
In Italy the child abduction cases are heard by judges who are specialized in Hague Convention cases.
The District Court in principle gives its judgment within 6 to 12 weeks. The Court of Appeal will give a decision in 3 to 6 months.
A special judge has been appointed, who can have judicial communications with judges from other countries if so desired in any case.
The child aged 12 (and sometimes even younger if it is deemed as capable of discernment) is always heard by the panel of the competent Juvenile Court in return proceedings. However, if the child’s hearing is in conflict with its best interests or it is deemed as overtly unnecessary, the Juvenile Court shall not hear it and will issue a motivated order thereof, in accordance with Article 336 bis of Italy’s Civil Code.
The child interview is not the only way a child’s opinion can be heard. There can also be a report prepared by an independent expert (the Welfare offices or Child and Adolescence Psychology Centers) and/ or the child’s can have it’s own legal representitive. A guardian ad litem can be appointed when the child’s best interests seem in conflict with the parent’s best interest.
There is no information available about mediation during the return application in Italy. However, there is another form of Alternative Dispute Resolution, which is in-court conciliation and out-of-court conciliation.
When one of the parent appels this does not automatically suspend the return order.
You can ask the court to decide that the abducting parent must pay the expenses made in connection with the abduction and the return of the child.
If you think your child is in Italy, but you do not know exactly where, the Italian Central Authority can help you locate your child.
If you fear that your child will be abducted from Italy to another country, or otherwise disappear from view, various measures can be taken:
- child’s passports to be deposited with authorities
- alleged abductor’s passport to be deposited with authorities
- obtain orders to prevent the removal of the child
- issuing border and/ or port alerts
- requiring the alleged abductor to pay a bond / deposit
- temporary placement of child in institutional care
- the competent Consulate of a Member State can be requested not to issue a new passport on the child’s name. The competent Consulate of the Member State where the child could have been removed to can be requested not to deliver an entry visa on the child’s name.
A parent who does not live in Italy, but who does need a lawyer in Italy, may be eligible for subsidized legal assistance, depending on his/her income and assets.
Criminal law : Italy
Parental child abduction is a criminal offence in Italy. If the relocation of the child has a negative impact on the exercise of parental responsibility, the relocating parent can be charged with child abduction (article 574 of the Italian Criminal Code). This can be a relocation within Italy or a relocation to another country.
Child abduction can be punished with imprisonment.
If the relocation of the child has a negative impact on the excercise of parental responsibility and it occured after a court order had been issued and in contrary to this court order, the abducting parent can be charged with intentional failure to comply with a court order (article 388 of the Italian Criminal Code).
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Relevant case law in Italy
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