Joint Custody and the Hearing of Minors: Analysis of Cass. civ. n. 32290/2023

The judgment of the Court of Cassation no. 32290 of 2023 offers an important reflection on child custody and the right to be heard. In the context of separation, the issue of hearing minors is of particular relevance, especially when discussing joint custody and support measures. The case in question concerns A.A., who requested a modification of the custody of his twin daughters but was met with the rejection of his request by the Court of Appeal.

The Legal Context of Child Custody

A minor's right to be heard is enshrined in art. 315 bis of the Italian Civil Code (c.c.) and is based on international conventions on the rights of the child. However, the Court deemed it unnecessary to hear the minors, considering their age and capacity for discernment. In particular, it emerged that the children, despite having turned ten, did not possess the necessary maturity to express themselves before the judicial authority. The ruling emphasizes that direct hearing is not an automatic act but must be assessed on a case-by-case basis.

A minor's right to be heard is fundamental, but it must not be applied rigidly and automatically.

The Reasoning of the Court of Cassation

The Court analyzed the grounds for appeal, highlighting that the decision not to hear the minors was adequately reasoned. In fact, the Court of Appeal considered it more appropriate for the hearing to take place through a professional, such as a psychologist, rather than in a judicial setting, to avoid potential pressure from the parent.

Implications and Conclusions

This ruling reiterates the importance of a balanced approach in managing custody cases. It is essential that decisions regarding the hearing of minors are always oriented towards their best interests, taking into account their capabilities and the family situation. Italian jurisprudence, supported by national and European regulations, continues to evolve to ensure the protection of minors' rights while promoting family well-being.

Conclusions

The Court of Cassation, with its order, has set an important precedent regarding the right of minors to be heard, emphasizing that this right must be exercised consciously and responsibly. Decisions must always aim to ensure the minor's best interests, avoiding unjustified interference in family life.