Shared Custody and Geographic Distance: The Clarity of the Court of Cassation (Order No. 16280/2025)

In the delicate landscape of family law, the custody of minor children represents one of the most complex and sensitive aspects, where the balance between parental rights and, above all, the paramount interest of the child must be carefully weighed. The Court of Cassation, with Order No. 16280 of June 17, 2025, has provided further valuable clarification on the criteria guiding decisions regarding shared custody, emphasizing its nature as a general principle and its limited exceptions.

This ruling, which rejected an appeal against a decision by the Court of Appeal of Milan of December 5, 2023, in the case involving D. A. M. and C., follows a consolidated line of case law but forcefully reiterates fundamental concepts that deserve in-depth examination.

The Principle of Shared Custody: A Flexible but Robust Rule

The Italian legal system, through Article 337-ter of the Civil Code, establishes that a minor child has the right to maintain a balanced and continuous relationship with each parent, to receive care, upbringing, and education from both, and to preserve significant relationships with the ascendants and relatives of each parental branch. This principle translates into the rule of shared custody, which represents the ordinary method of exercising parental responsibility in cases of separation or divorce.

The Supreme Court, with Order No. 16280/2025, emphasizes that this rule can only be deviated from in the presence of exceptional circumstances. Mere difficulty or disagreement between parents is not sufficient; deviation is permissible only if the application of shared custody would be "prejudicial to the child's interest." This clarification is crucial, as it shifts the focus from the suitability of a single parent to a broader assessment of the overall impact on the child's balance and well-being.

In matters of custody of minor children, the rule of shared custody of children can only be deviated from when its application is found to be "prejudicial to the child's interest," with the dual consequence that any ruling of exclusive custody must be supported by reasoning not only in positive terms regarding the suitability of the custodial parent but also in negative terms regarding the educational unsuitability or manifest deficiency of the other parent, and that shared custody cannot reasonably be considered precluded by the objective distance between the parents' places of residence, as such distance can only affect the regulation of the times and modalities of the child's presence with each parent.

As clearly expressed in the summary, a ruling of exclusive custody cannot be based solely on the recognized suitability of the custodial parent. Instead, "negative" reasoning is required, highlighting the educational unsuitability or a manifest deficiency of the other parent. This means that the judge must ascertain not only who the more suitable parent is but also why the other parent is not, or why their participation in shared custody would be detrimental to the child.

Geographic Distance Between Parents: A False Obstacle?

Another fundamental point clarified by Order No. 16280/2025 concerns the relevance of geographic distance between parents' places of residence. Often, in cases of separation or divorce, one parent decides to move to another city or region, raising concerns about the feasibility of shared custody. The Court of Cassation is unequivocal on this aspect: shared custody "cannot reasonably be considered precluded by the objective distance between the parents' places of residence."

This means that distance, in itself, is not a sufficient reason to deny shared custody and opt for exclusive custody. The Court reiterates that distance "can only affect the regulation of the times and modalities of the child's presence with each parent." In other words, distance does not prejudice the principle of shared custody but requires greater flexibility and creativity in defining the visitation schedule and the modalities of contact, as provided for by Article 337-quater of the Civil Code.

In these contexts, judges are called upon to define solutions that, while taking distance into account, ensure the child's ability to maintain a significant relationship with both parents. This may translate into:

• Longer periods of stay with one parent, compensated by equally extended periods with the other (e.g., during school holidays).
• Use of technological tools for remote communication (video calls, messages).
• Sharing of travel and transportation costs for the child.
• Flexibility in meeting arrangements, adapted to logistical needs.

The objective is always to minimize distress for the child and maximize their opportunity to fully experience the relationship with both parents, even in the face of logistical challenges.

Conclusions: The Paramount Interest of the Child at the Forefront

Order No. 16280/2025 of the Court of Cassation represents an important reminder for all legal professionals and, above all, for parents involved in separation or divorce proceedings. The principle of shared custody is not a mere legal technicality but the embodiment of a child's fundamental right to grow up with the contribution of both parents.

The possibility of deviating from this principle is limited to situations where the child's interest is genuinely and seriously compromised, and cannot be justified by mere logistical difficulties or conflicts that are not detrimental to the children's psychophysical well-being. Case law continues to reiterate that the assessment must always and solely focus on the paramount interest of the child, which remains the guiding principle for all decisions in family matters. For any doubts or need for legal assistance, it is essential to consult professionals experienced in family law, capable of navigating these complex dynamics with expertise and sensitivity.