Territorial Jurisdiction in Minor Proceedings: Cassation Ordinance 11622/2025 and Illicit Residence Transfer

The protection of minors is a priority in family law. The Italian Court of Cassation Ordinance No. 11622 of May 3, 2025, clarifies a crucial aspect: the territorial jurisdiction of the judge when a child's residence changes. The ruling analyzes Article 473-bis.11 of the Code of Civil Procedure, introduced by the Cartabia Reform, outlining the boundaries of residence transfer and its jurisdictional implications.

Habitual Residence and Protection from Non-Consensual Transfer

Italian law establishes that territorial jurisdiction for proceedings concerning minors lies with the court in whose district the minor has their "habitual residence." Article 473-bis.11 of the Code of Civil Procedure introduces an exception to prevent "illicit" transfers, meaning moves that occurred without the consent of one of the parents. The objective is to prevent one parent from unilaterally altering jurisdiction, hindering relations with the other.

In proceedings concerning minors, the court in whose district the minor has their habitual residence has territorial jurisdiction, unless such residence has been illicitly transferred, i.e., without the consent of one of the parents, because, pursuant to Article 473-bis.11 of the Code of Civil Procedure, even if a new habitat is established with all the characteristics of a habitual residence, if the claim is filed within one year of the transfer, the territorial jurisdiction of the judge of the previous habitual residence remains valid. (In this case, the Supreme Court excluded the applicability of Article 473-bis.11, paragraph 1, second part of the Code of Civil Procedure, because, given a severely compromised sentimental relationship, the center of the minor's life had become rooted at the maternal grandparents' home in Siracusa, rather than at the father's place of work in Milan, and all the mother's moves to Sicily had been made consensually).

The Supreme Court, with Ordinance No. 11622/2025, confirms that even if a minor establishes a new habitual residence, if the transfer occurred without the consent of one of the parents and the issue is raised within one year, jurisdiction remains with the judge of the previous residence. This mechanism protects the non-consenting parent.

Parental Consent: The Key to the Decision

The case examined by the Cassation Court is illustrative. The minor had settled with their maternal grandparents in Siracusa, while the father, S., worked in Milan. The mother, B., had made trips to Sicily. The Court had to determine whether this transfer was "illicit" under Article 473-bis.11 of the Code of Civil Procedure.

The Supreme Court excluded the application of the exception for illicit transfer. Despite the "severely compromised" relationship between the parents, the Court ascertained that all the mother's moves to Sicily had occurred consensually. This is the crux of the decision: the existence of the other parent's consent precluded the qualification of an "illicit transfer," grounding jurisdiction in the place of the minor's new habitual residence (Siracusa). The ruling highlights how consent is the determining factor, emphasizing the importance of a shared agreement between parents for decisions concerning their children's lives.

Key Points for Parents

Ordinance No. 11622/2025 offers fundamental guidance:

• Priority of Consent: Any significant transfer of a minor's residence requires the explicit consent of both parents.
• Time Limit for Challenge: In case of a transfer without consent, the non-consenting parent has one year to contest the move and request the maintenance of the original jurisdiction.
• Minor's Stability: The legislation aims to protect the stability and continuity of the minor's life, preventing destabilizing unilateral decisions.
• Cartabia Reform: Article 473-bis.11 of the Code of Civil Procedure is a new provision introduced by the Cartabia Reform (Legislative Decree 149/2022) to rationalize family law proceedings.

Conclusions: The Minor's Best Interest at the Forefront

The Cassation Court Ordinance No. 11622 of 2025 clarifies a cardinal principle: territorial jurisdiction in proceedings concerning minors is linked to their habitual residence, but it is tempered by a protective mechanism for non-consensual transfers. Only the absence of parental consent qualifies a transfer as "illicit," maintaining the jurisdiction of the judge of the previous residence. This reinforces the need for an agreement between parents or judicial authorization for decisions affecting their children's lives, always placing the superior interest of the minor at the center.