Amendments to Divorce Conditions: Commentary on Cass. civ., Section I, Judgment no. 9442 of 2024

The recent judgment of the Court of Cassation, no. 9442 of 2024, offers an important reflection on divorce conditions and, in particular, on children's visitation rights. This decision is part of a legal context in which the right to shared parenting and the protection of the child's best interests play a central role, as provided for by Article 8 of the European Convention on Human Rights (ECHR).

The Case Under Review

In the case analyzed, B.B. requested the modification of the divorce conditions established in a judgment of the Court of Geneva, seeking a reduction in the maintenance contribution and the elimination of restrictions on overnight stays for their son C.C., who suffers from epilepsy. The Court of Appeal of Venice partially granted the appeal, providing for a gradual introduction of overnight stays, starting from July 2024, to ensure the child's adequate adaptation.

The right of visitation is not an autonomous subjective right, but a modality of exercising the right to family relations, fundamental for the child's well-being.

The Court's Reasoning

The Court of Cassation addressed the admissibility of the appeal, clarifying that measures concerning the right of visitation are subject to appeal when they affect fundamental rights, such as the right to family life. It was therefore affirmed that measures limiting the child's time with the non-resident parent must be justified by a thorough analysis of the child's conditions, avoiding decisions that could compromise the relationship between parent and child.

• The right to shared parenting must be guaranteed through a functional organization of time spent with each parent.
• Judicial measures must respect the superior interests of the child.
• The denial of significant contact between parent and child can have irreparable consequences on the family relationship.

Conclusions

Judgment no. 9442 of 2024 by the Court of Cassation is part of an important legal debate concerning the modalities of exercising shared parenting and the right of visitation. The Court reiterated that the child's interests must always prevail and that every decision must be made considering their psychological and emotional well-being. This approach is fundamental to ensuring that amendments to divorce conditions do not harm family ties, but rather foster a serene and stable environment for the child's upbringing.