Child custody and jurisdictional conflicts: an analysis of the Court of Cassation Order no. 28901 of 2025

When a couple with children decides to separate, managing the family crisis can become complex, not only from an emotional perspective but also from a procedural one. One of the most delicate issues concerns identifying the court with jurisdiction to decide on the custody and placement of minors, especially when separation proceedings before the Ordinary Court and proceedings for the limitation of parental responsibility before the Juvenile Court intersect. Against this backdrop, the significant Order no. 28901 of 01/11/2025 of the Court of Cassation provides important clarifications on the allocation of jurisdiction under the regime prior to the Cartabia reform.

The case and the issue of jurisdiction

The matter examined by the Supreme Court originated from a jurisdictional conflict raised during a dispute between R. (represented by L. I.) and M. The central issue concerned the determination of the court with jurisdiction to rule on the custody and placement of the couple's minor children. On one hand, there were de potestate proceedings initiated upon the petition of the Public Prosecutor before the Juvenile Court; on the other, subsequent separation proceedings introduced by the spouses before the Ordinary Court.

The legal crux lies in the application of Article 38 of the implementing provisions of the Civil Code, in the wording prior to the reform introduced by Law no. 206 of 2021. The Court of Cassation had to determine whether the commencement of the separation case could attract to itself (the so-called vis attractiva) the jurisdiction over decisions concerning the minors, thereby divesting the Juvenile Court of the already pending proceedings.

The decision of the Court of Cassation and the legal principle

The judges of the Court of Cassation confirmed the lack of jurisdiction of the Ordinary Court, noting that the juvenile petition had been filed prior to the separation proceedings and before the entry into force of the reform (set for June 22, 2022). To fully understand the scope of this decision, it is useful to read the legal principle (massima) expressed by the Court:

Regarding child custody, Article 38, paragraph 1, of the implementing provisions of the Civil Code, in the text in force prior to the amendment by Law no. 206 of 2021, limits the vis attractiva of the Ordinary Court to cases in which proceedings for separation or divorce have been introduced before it prior to de potestate proceedings or other proceedings under the jurisdiction of the Juvenile Court.

This principle clearly defines the operation of the attraction of jurisdiction in favor of the ordinary judge. In essence, the Ordinary Court may attract issues relating to minors only if the separation or divorce case was filed before the proceedings limiting parental responsibility were initiated at the Juvenile Court. If the juvenile action is prior, it retains its autonomy and jurisdiction.

Temporal criteria and the Cartabia reform

The ruling in question proves to be of fundamental importance for understanding the transition toward the new regulatory framework. The Court, in fact, reiterated the following key points:

• Temporal priority: Under the old regime of Article 38 of the implementing provisions of the Civil Code, the watershed for determining jurisdiction is strictly temporal: whoever approaches the court first establishes jurisdiction.
• Non-retroactivity: The innovations introduced by Law no. 206 of 2021 (Cartabia reform) do not apply to proceedings initiated before June 22, 2022, for which the old rules of allocation continue to apply.
• Protection of the minor: The legislator's choice, endorsed by case law, aims to ensure the continuity of the judge already invested with the protection of the minor, avoiding harmful procedural fragmentation.

Conclusions

With Order no. 28901 of 2025, the Court of Cassation reaffirms a principle of procedural stability for the protection of the most vulnerable parties, the minors. Under the regime prior to the Cartabia reform, the temporal priority of the juvenile petition prevents subsequent separation proceedings from attracting decisions on custody. This decision represents a valuable guide for legal professionals tasked with managing delicate family transitions during legislative reforms, confirming the centrality of the best interests of the child at every procedural juncture.