Analysis of the Judgment Cass. pen., Sez. VI, n. 10905 of 2023: Wilful Failure to Comply with Court Orders

The ruling n. 10905 of March 14, 2023, by the Supreme Court of Cassation provides important clarifications on the crime described in Article 388, paragraph 2, of the Penal Code, concerning the wilful failure to comply with court orders in matters of custody and visitation rights of minors. This ruling is particularly significant for parents involved in separation and custody proceedings, as it outlines the limits of criminal liability in the event of non-compliance.

The Case: Refusal of Meeting between Parents and Children

In the specific case, the defendant A.A. had been convicted for preventing the father B.B. from meeting his daughter, thereby evading a civil court order. The Court of Appeal had deemed that the mere refusal to comply with the judge's order constituted the crime outlined in Article 388, paragraph 2, of the Penal Code. However, the Cassation examined the issue, establishing that evasive conduct requires something more than mere non-compliance.

The conduct that is criminally relevant is not constituted by a single and occasional violation of court orders regarding child custody, but requires an evasive attitude that, over a significant period of time, is capable of preventing the proper implementation of the regulations governing the relationship between the non-custodial parent and the child.

Distinction between Non-compliance and Evasive Conduct

The Court reiterated that the crime outlined in Article 388, paragraph 2, of the Penal Code cannot be configured in the case of mere non-compliance, but requires that the custodial parent engage in fraudulent or pretextual behaviors. It is crucial that the refusal to allow meetings between the non-custodial parent and the child is not occasional but rather part of a systematic behavior aimed at obstructing visits.

  • The crime of failure to comply is constituted only by conduct that significantly hinders the right to visitation.
  • A single violation is not sufficient in itself to configure a criminally relevant behavior.
  • Evasive conduct must be systematic and not sporadic.

Conclusions: Practical Implications of the Ruling

The ruling n. 10905 of 2023 represents a step forward in the jurisprudence regarding the rights of minors and the obligation of cooperation between parents in situations of separation. It clarifies that criminal liability for failing to comply with a court order should not be applied automatically but must consider the context and nature of the conduct. This ruling offers greater protection for parents who, for legitimate reasons, may not be able to comply promptly with provisions regarding visitation rights, without incurring criminal sanctions.

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