Separation and the Right to Move: Commentary on Cass. Civ., Ord. No. 33608 of 2021

The ruling of the Court of Cassation No. 33608 of 2021 addresses a highly relevant issue in family law: the right of a parent to move the residence of their minor child abroad, in the presence of shared custody. This issue is part of the broader debate on balancing the growth needs of minors and the individual needs of parents, especially in situations of separation or divorce.

The Case in Question

In the case before the Court, the mother, O.V.I., requested to move her son R.J.'s residence to Romania, where she would have better work and relationship opportunities. The request was denied by the Trento court, which pointed out that the move could jeopardize the child's relationship with the father, G.R., already under a shared custody arrangement. The mother then appealed to the Court of Cassation, arguing that her rights as a custodial parent should prevail.

The right of adults to choose their residence must be balanced with the minor's right to maintain a bi-parental relationship.

Legal and Jurisprudential Principles

The Court of Cassation, in rejecting the appeal, reaffirmed some fundamental principles. First, Article 337-ter of the Civil Code establishes that the minor has the right to maintain a balanced and continuous relationship with both parents. Jurisprudence has already clarified that a parent's move does not automatically imply the loss of their suitability to have custody of the children. However, the Court emphasized that every decision must be made with the best interest of the minor in mind.

A Difficult Balance to Find

The case in question highlights the challenges judges face in situations of conflict between parents. The Court found that moving abroad would jeopardize the emotional bond between the father and the child, compromising the child's psycho-physical development. The importance of ensuring stability and continuity in family relationships is a crucial point, which often clashes with the personal aspirations of parents.

• The minor's right to maintain stable relationships is paramount.
• The move abroad must be carefully evaluated.
• Every decision must consider the needs of both parents and the minor.

Conclusions

The decision of the Court of Cassation No. 33608 of 2021 provides insights into the complexity of family dynamics post-separation. It highlights how, in the presence of shared custody, moving the residence of the minor abroad must be carefully assessed, always placing the child's interest at the center. This jurisprudential orientation encourages parents to consider not only their own needs but also the impact of their decisions on the lives of their children, promoting responsible and conscious parenting.