Cass. Civ., Ord. n. 4796/2022: The Right to Bigenitoriality and the Transfer of Minors
The recent ruling of the Court of Cassation, no. 4796 of February 14, 2022, raises important questions regarding the right to bigenitoriality and the methods of transferring minors in the event of parental separation. The ruling focuses on a case where the custodial parent requested to move with the child approximately 500 kilometers away, highlighting the delicate balance between the child's right to maintain balanced relationships with both parents and the needs of the custodial parent.
The Context of the Ruling
The case in question involves C.S., the father of the minor C., who appealed against the decree of the Court of Appeal of Genoa, which had authorized the mother, G.R., to move with the child to her hometown. The Court justified its decision by emphasizing the young age of the child, his adaptability, and the mother's work and relational difficulties in the new location.
The child's right to maintain balanced and ongoing relationships with both parents must be recognized by the judge in conjunction with the interest of the custodial parent and others.
Reflections on the Legal Principles Involved
The Court of Cassation reiterated the importance of the principle of bigenitoriality, enshrined in Article 337-ter of the Civil Code and Article 8 of the European Convention on Human Rights (ECHR). In this context, the judge must always evaluate how the transfer may affect the relationships between the minor and the non-custodial parent. The ruling emphasized that the child's interest must prevail in the decision to authorize or not authorize the transfer.
- The transfer of the minor must be justified and must not compromise his right to grow up with both parents.
- The judge must consider the specific circumstances of the case, such as the emotional bond already established between the minor and the non-custodial parent.
- The minor's adaptability is a key factor in assessing the transfer.
Conclusions
In conclusion, the ruling no. 4796/2022 of the Court of Cassation provides insights into the complexity of post-separation family dynamics. Judges must always consider the child's best interest, ensuring that his right to maintain balanced emotional relationships with both parents is not compromised by unilateral decisions. This case highlights the importance of a balanced and attentive approach to the needs of all parties involved.
