The Court of Cassation and Child Custody: Reflections on Ruling No. 32290/2023

On November 21, 2023, the Court of Cassation issued ordinance No. 32290, addressing sensitive issues concerning child custody and the right of children to be heard in situations of parental separation. The decision is part of a complex legal framework, highlighting the importance of the "best interests of the child" principle and the methods for evaluating evidence in such delicate contexts.

The Case and Underlying Legal Issues

In the case at hand, the father of minors C.C. and D.D. appealed the decision of the Court of Appeal of Trieste, which had rejected his request for sole custody of the children, confirming shared custody instead. Among the grounds for appeal, the father contested the decision not to directly hear the minors, arguing that they had reached an age sufficient to express their opinions. However, the Court referred to the provisions of art. 315 bis of the Italian Civil Code (c.c.), emphasizing that the hearing of minors is not an automatic act but must be assessed on a case-by-case basis.

The Court of Cassation reiterated that a minor should only be heard if they are capable of discernment and if their hearing would not cause prejudice.

Legal Principles and Relevant Case Law

The Court of Cassation referenced several legal principles and national norms, including art. 8 of the European Convention on Human Rights, which protects the right to family life. Furthermore, the Court clarified that judicial intervention must always aim to ensure the best interests of the child, even in the presence of parental conflict. It is essential that decisions are based on concrete evidence and thorough evaluations, avoiding superficial interpretations of family situations.

Among the salient points of the ruling, the following are highlighted:

• The recognition of the child's rights as the holder of their own interests.
• The importance of the reasoning in the decision not to hear a minor.
• The necessity of concrete evidence in cases of alleged mistreatment.

Conclusions: Final Reflections on the Ruling

Ruling No. 32290/2023 by the Court of Cassation represents an important step in the protection of children's rights within the context of separations. It underscores the importance of a legal approach that not only protects minors but also respects the rights and responsibilities of parents. The right to be heard must be balanced with the need to protect minors from potentially harmful situations, highlighting the complexity of family dynamics and the necessity for accurate and well-reasoned judicial intervention.