Child Custody: Commentary on Order Cass. Civ. No. 5738 of 2023

The recent order of the Court of Cassation, No. 5738 of 2023, offers important food for thought regarding the issue of child custody in cases of parental separation. Specifically, the Court examined the case of a minor born out of wedlock, establishing shared custody and equal visitation rights. However, the decision has raised questions about the correct application of the principle of the child's paramount interest, highlighting how mere parity between parents cannot disregard an in-depth assessment of the specific circumstances.

The context of the decision

The Court of Appeal of Venice had confirmed a first-instance ruling, establishing shared custody and revoking the assignment of the family home to the mother. However, the mother appealed to the Court of Cassation, contesting the decision on several grounds. The Court of Cassation, accepting the first ground of appeal, emphasized that the child's interest cannot be considered abstractly but must take into account specific family and social conditions.

The order revoking the family home cannot be an automatic consequence of the equal exercise of visitation rights.

Key points of the ruling

• The need for a rigorous assessment of the child's interest in every custody decision.
• The importance of considering the family context and the child's past experiences.
• The distinction between economic issues and those relating to the child's well-being.

Conclusions

In conclusion, Order Cass. Civ. No. 5738 of 2023 reiterates the importance of an in-depth analysis of family conditions in cases of child custody. The decision invites judges not to limit themselves to a superficial assessment but to consider the child's well-being as the fundamental criterion in deciding on custody and placement. This approach is in line with the provisions of the UN Convention on the Rights of the Child, which places the child's well-being at the center of every decision.