Commentary on Judgment No. 38126 of 2023: Mere Non-Performance Does Not Constitute the Offense of Failure to Execute Judicial Orders

Judgment No. 38126 of 2023, issued by the Court of Cassation, addresses a delicate and highly relevant issue in family law: non-performance of visitation obligations related to child custody. This judicial decision offers important clarification on the distinction between mere non-performance and criminally relevant conduct, contributing to defining the boundaries of legal action in situations of separation and custody.

The Context of the Judgment

The case concerned a mother, M. P.M., who had moved abroad with her minor daughter, failing to comply with the obligation to bring the child to Italy to meet her father during holidays. The Court of Appeal had initially found wilful non-performance, but the ruling of the Court of Cassation overturned this decision, establishing that simple non-performance cannot in itself constitute a crime under Article 388, paragraph two, of the criminal code.

OBJECTIVE (MATERIAL) ELEMENT - Visitation Right - Mere non-performance by the obligated party - Criminal relevance - Exclusion - Reasons - Factual circumstances. Regarding the circumvention of civil court orders relating to child custody, mere non-performance does not constitute the offense referred to in Article 388, paragraph two, of the criminal code. It requires the custodial parent to evade, through fraudulent or simulated acts, the obligation to allow visits by the non-custodial parent, obstructing them through bad-faith conduct. (Factual circumstances in which the Court found the offense to be non-existent against the custodial mother, who had moved abroad and failed to comply with the obligation to bring her minor daughter to Italy to meet her father during holidays, bearing the related costs, having previously requested from the civil judge, and partially obtained, a modification of the travel expenses burden, which were no longer sustainable, as well as attempting an amicable agreement with the other party).

The Distinction Between Non-Performance and Criminally Relevant Conduct

The Court thus clarified that the scope of Article 388 of the criminal code is limited to situations where the custodial parent commits fraudulent or simulated acts to obstruct the visits of the non-custodial parent. Therefore, it is crucial to identify conduct that demonstrates bad faith and the intent to circumvent the judge's provisions.

The judgment is part of a broader jurisprudential context, where it has often been debated whether non-performance of visitation obligations can constitute a crime. The Court reiterated the necessity of a subjective element, highlighting the distinction with factual circumstances where, instead, active obstruction of visits is found.

Conclusions

In conclusion, Judgment No. 38126 of 2023 represents a significant step forward in protecting the rights of minors and clarifying the criminal liability of parents in cases of non-performance of visitation obligations. The Court firmly stated that mere non-performance is not sufficient to constitute a crime, unless there are elements of fraud or bad faith. This principle not only offers greater protection to parents in difficult situations but also contributes to defining a clearer and fairer legal framework for all parties involved in the custody process.