A comprehensive guide to child custody and access in The European
Union is available at the Web site of the Centre for Europe's
Children:
Centre for Europe's Children
Questionnaire (prepared by representatives of the signatories)
http://eurochild.gla.ac.uk/Documents/CoE/Reports/RightofAccess/Question.htm
Substantiative Law in Force
http://eurochild.gla.ac.uk/Documents/CoE/Reports/RightofAccess/Part_A.htm
Italy
1 - Name of the applicable law
Article 155 of the Civil Code 1970 Divorce Act
2 - Persons who may apply for access
A divorced parent not given custody. A natural parent not living with
the child. Parents deprived of parental responsibility. Foster
parents, grandparents, brothers and sisters have no direct right
unless the court decides otherwise.
3 - Does the child have:
a) a right to access?
Persons granted access are duty-bound to exercise it. To this extent
children have a right of access.
b) a right to oppose access?
The court may decide to hear the child, but in the end it takes a
decision based on what it regards as the child's best interest.
4 - Can other people oppose access?
Only parents and State Counsel have a formal right to oppose access,
but State Counsel and welfare agents may ask a court to vary an
earlier decision on account of a change in circumstances that is
harmful to the child in question.
5 - Which body decides on access?
The court dealing with a divorce or separation. The Juvenile Court for
children born out of wedlock.
a) Who is heard during the procedure?
The courts apparently hear parents and may hear the child, in
person, at the child's request.
b) Is the decision limited to a period of time?
No, but the decision ceases to take effect once the child is 18 and
the court may vary it at any time.
United Kingdom
1. The Children Act of 1989
2. Parents (whether married or not). Guardians. In some circumstances
grandparents, foster parents and third parties. Otherwise the courts
may grant access to the latter if the nature and consequences of their
request and their relationship with the child permit.
3. a) Where given leave (in view of their maturity) children can
initiate proceedings (always in the High Court) and apply for legal
aid in order to obtain or challenge access. If a child is in local
authority care, the child may apply to the court for access to be
suspended (in principle it is maintained by the local authority).
4. Persons exercising parental responsibility may be parties, as may
those initially a party. A large
number of notices are provided for. Anyone may apply to be joined or
cease to be a party. This is a matter for judicial discretion, unless
the party has parental responsibility.
5. The courts take action only in the event of disagreement between
the parents or for the child's good, particularly when the child is in
local authority care.
a) The parties to contact proceedings (including the child if
necessary), the local authority and the reporting official, if any.
b) A decision may be limited in time and ceases to be valid when the
child reaches 16, unless exceptionally extended to the age of 18.
See also the subsequent pages on that site for other provisions under
the Hague Convention.
Italian Civil Law Code
FindLaw International Resources: Countries: Italy
http://www.findlaw.com/12international/countries/it.html
ForInt
Washburn University School of Law Library
Foreign and International Law - Italy
http://www.washlaw.edu/forint/europe/italy.html
Institute for Legal Documentation
Italian National Research Council
English language interface
http://www.idg.fi.cnr.it/homeeng.htm
Cardozo Institute
Law on the Web
http://www.jus.unitn.it/cardozo/law_web/home.html
Click on the "Italian Law" link:
See:
Diritto e della Famiglia
http://www.dirittoefamiglia.it
Si tratta di una rivista di cultura giuridica che, nata come sezione
del periodico "Telediritto" si è oggi sviluppata come organo di
divulgazione della Società Italiana per lo studio del Diritto e della
Famiglia - So.I.Di.Fa, associazione scientifica senza scopo di lucro.
All'interno del sito è possibile consultare massime e sentenze estese
di particolare rilievo insieme a richiami legislativi, ad articoli di
dottrina che riguardano la famiglia e i minori.
and especially,
Giacomo OBERTO'S Home Page
http://www.geocities.com/CollegePark/Classroom/6218/
From Giacomo Oberto's site:
Family Law
http://www.geocities.com/CollegePark/Classroom/6218/famiglia.htm
See on that page:
SCHEMA IPERTESTUALE
DI UNA RELAZIONE
SUL TEMA:
IL REGOLAMENTO DEL CONSIGLIO
(CE) N. 1347/2000 DEL 29 MAGGIO 2000
RELATIVO ALLA COMPETENZA,
AL RICONOSCIMENTO E ALL’ESECUZIONE
DELLE DECISIONI IN MATERIA MATRIMONIALE
E DI RESPONSABILITÀ PARENTALE
NEI CONFRONTI DEI FIGLI COMUNI (*)
ftp://ober45:ftp23to7@ftp.venturanet.it/Private/relazionetorino31maggio2002/schema.htm
and
THE LEGAL STATUS OF CHILDREN
a) after Divorce, Separation or Annulment of a Marriage
b) after the Separation of Parents Cohabiting without Being Married to
Each Other
http://www.geocities.com/CollegePark/Classroom/6218/sivi.htm
(Note that this page provides more recent information than that of the
Centre for Europe's Children. For instance:
A. After Divorce
1.a) Does your legal system provide for the possibility of joint
custody of the children or must the custody be entrusted to one of the
parents?
Divorce has been introduced in Italy by Act 898, 1 December 1970,
which originally didn't foresee any possibility of joint custody. This
law has been amended in 1987 (Act 74, 6 March 1987), when italian
judges have been permitted to entrust custody to both parents, either
jointly or alternatively, if it can be in the interest of the child,
regarding their age (see article 6, subsection 2, Act 898/70, amended
by article 11, Act 74/87).
See the other questions and answers on that same page.
Legal strategy in custody suits.
International Journal of Law, Policy, and the Family, 15, (2001),
276-289
Children, Law, and Social Policy in Italy
Paola Ronfani
(pp. 284-285)
http://www3.oup.co.uk/lawfam/hdb/Volume_15/Issue_02/pdf/150276.pdf
"We may recall that an Italian judge can award joint custody
(expressly provided for in the divorce law of 1987), irrespective of
whether any such request has been presented by the parents, when it is
seen to be in the child's best interests."
[...]
"The general rule, expressed in the family reform law of 1975, is that
'unless the judge decrees otherwise, the parent with custody of the
children has exclusive legal power over them, but must respect
whatever conditions the judge may have determined. Unless otherwise
stated, decisions taken in the children's interests are to be adopted
by both parents. The parent without custody is expected to keep a
check on their upbringing and education, and can appeal to the judge
if (s)he considers decisions have been taken against the children's
interests' (article 155 civil code).
It must be made clear at once that, in spite of the impression this
rule might give, Italian judges do not play any really incisive role
in deciding custody. They tend to shy away from carrying out
investigations into whether or not a parent is psychologically
suitable to have custody, limiting themselves to certifying the
agreements which the parties in question have reached outside the
courtroom, with the help of their lawyers. Furthermore, they hardly
ever base their decisions on the specific qualities of the
relationship between the child and each parent, relying on the idea
that a juvenile should be entrusted to the parent more capable of
ensuring that (s)he is subjected to the 'least possible damage' the
family breakup might cause.
According to some critical interpretations, this means that judges
will simply reward custody to the mother, on the generally held
assumption that a mother is key figure in childcare, especially where
very small children are concerned (in fact the rare cases of paternal
custody usually involve adolescents). According to other
interpretations, referring to results obtained partly through
empirical research, one reason why judges make such little use of
their discretionary powers when deciding on custody derives above all
from the knowledge that, in the absence of any certain criteria for
determining the child's best interests, failure to take the parties's
wishes into account could actually be damaging for the child, since
respect for the conditions laid down always depends on the goodwill of
the parties themselves.
It is also true that the judge's decision is not always founded on the
willingness of one parent to encourage the child to have contact with
the other. The idea that continuity of relations with both parents is
in the child's best interests has only recently started to penetrate
Italian legal thinking, and it still comes up against considerable
resistance due to the widespread conviction that joint custody,
however praiseworthy it might be in theory, is unlikely to stand the
test of real-life conditions, and is thus unfeasible."
In other words, the argument must be made that the custody
arrangements sought in a contested case are the least damaging for the
child and are in the best interests of the child. Disruption of a
settled condition might be considered damaging. The older the child,
the better the chance for paternal custody. In all cases where
feasible, joint custody can be considered theoretically preferable,
but real-life conditions will be paramount in the final decision.
I couldn't find anything specifically on the "Chirami" law. It could
be too recent to have generated any resources.
Google search terms:
Italy civil law code divorce custody
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