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Family Lawyer Rome Milano | Italy

The Article 155 of the Civil Code, with the entry into effect of the Law February 8, 2006 n. 54, establishes as a principle pin, in matters of custody of children as a result of legal separation of the spouses, the so-called "joint custody". Directive explicitly refers to the main determination of the possibility of a shared custody, the judge should perform time of diffusion of various measures such as the article says 155 cc the document says about the "priority assessment," shows that as the previous result is to define what the circumstances are impediments to a custody order family.

At a time when there is no clear provision of law, if not the generic reference to "moral and material interests of the children" the guiding principle will certainly be of much support as possible to the child. If we look at the differences between the old and the new normative order we will see that in the old Article 155 cc where no system of bias was implemented by the legislature in the spreading of the custody order, the last provision of the law very clearly announces a criterion to trust both parents (joint custody).

Despite an obligation under the old Article 155, although there is no specific policy on the assignment of priority, the most obvious hypothesis was the exclusive of custody to the mother. This did not mean that, in principle, the judge could appeal to the institution of shared foster even if in practice the sole custody was the best idea adopted.

Before the reform, the establishment of joint custody (or shared custody) although was not explicitly provided for in Article 6 of divorce law (898/1970) and the case of legitimacy had already occurred in the past admitting the analogous application of the above mentioned provision to cases of separation (Cass. Civ. n. 2210 of 28.02.2000 and Cass. Civ. n. 127775 13.12.1995).

Undoubtedly both the new and old text of the law have as a point of comparison preeminent moral and material interests of the children, but to be changed is the orientation of the legislature on what actually applies to a greater extent in order to defend the interests of the children.

If you remotely consider that there was an overriding interest that the children were entrusted to both parents, the new doctrine identified as offspring of primary importance, that of constancy in relationships with both parents, while preserving as much as possible the same balance of attendance between both parents.

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