The Court of Cassation and Child Custody: Reflections on Judgment No. 32290/2023

On November 21, 2023, the Court of Cassation published order no. 32290, which addresses sensitive issues regarding child custody and the right of children to be heard in situations of parental separation. The decision fits into a complex legal context, highlighting the importance of the principle of the "best interest of the child" and the methods of evaluating evidence in such sensitive contexts.

The Case and Underlying Legal Issues

In the case at hand, the father of the minors C.C. and D.D. appealed against the decision of the Court of Appeal of Trieste, which had denied his request for sole custody of the children, instead confirming shared custody. Among the grounds for appeal, the father contested the decision not to directly hear the minors, arguing that they had reached an age sufficient to express their opinions. However, the Court referred to the provision of art. 315 bis of the civil code, emphasizing that the hearing of minors is not an automatic act but must be evaluated on a case-by-case basis.

The Court of Cassation reiterated that the minor's hearing should occur only if the minor is capable of discernment and if their hearing does not cause harm.

Legal Principles and Relevant Jurisprudence

The Cassation Court referenced several legal principles and national norms, including art. 8 of the European Convention on Human Rights, which protects the right to family life. Additionally, the Court clarified that the judge's intervention must always aim to ensure the best interest of the minor, even in the presence of conflicts between the parents. It is essential that decisions are based on concrete evidence and thorough evaluations, avoiding superficial interpretations of family situations.

Among the key points of the judgment, the following stand out:

• The recognition of the rights of the minor as the holder of their own interests.
• The importance of motivation in the decision not to hear a minor.
• The necessity for concrete evidence in cases of allegations of mistreatment.

Conclusions: Final Reflections on the Judgment

Judgment no. 32290/2023 of the Court of Cassation represents an important milestone in the protection of children's rights in the context of separations. It emphasizes the importance of a legal approach that not only protects minors but also respects the rights and responsibilities of parents. The respect for the right to be heard must be balanced with the need to protect minors from potentially harmful situations, highlighting the complexity of family dynamics and the necessity for accurate and well-motivated judicial intervention.