Facing a separation or divorce inevitably involves deep concerns about the well-being of one's children. One of the most frequent and delicate questions parents ask themselves concerns the children's voice within the process: to what extent can their wishes influence the judge's decision? Understanding the dynamics of listening to the minor is fundamental for best managing this transitional phase. As a divorce lawyer in Milan, lawyer Marco Bianucci daily meets parents who wish to protect their children, ensuring their desires are taken into consideration without, however, exposing them to emotional responsibilities too great for their age.

The legal framework: the child's right to be heard

In Italy, the child's right to be heard in proceedings concerning them is unequivocally enshrined in Article 315-bis and Article 336-bis of the Civil Code, as well as in international conventions. The law states that a minor child who has reached the age of twelve, and even younger if capable of discernment, has the right to be heard in all matters and proceedings that concern them. This means that the court cannot ignore the voice of the child or adolescent when crucial decisions must be made regarding their custody or primary residence. However, it is essential to distinguish between the right to be heard and decision-making power. The judge has the duty to hear the minor, but the final decision always rests with the court, which must assess whether the wishes expressed by the child truly align with their best interests, or if they are the result of external conditioning or a momentary conflict of loyalty towards one of the parents.

Capacity for discernment and methods of hearing

There is no automatic mechanism that binds the judge to the minor's wishes, not even if they are an adolescent. The hearing serves to provide the magistrate with valuable elements for understanding the child's maturity and the quality of their relationships with both parents. If the minor is under twelve years of age, the hearing only takes place if the judge believes the child has sufficient capacity for discernment, meaning the ability to understand the situation and form an independent opinion. The hearing takes place in a protected environment, often with the assistance of psychologists or experts, and without the direct presence of the parents or their lawyers, to ensure the minor feels free to express themselves without pressure. An expert lawyer in family law knows how delicate this phase is and works to ensure that the hearing does not become a trauma but remains a tool for protection.

The Bianucci Law Firm's approach to listening to the minor

At the Bianucci Law Firm, the approach to cases involving the listening of minors is characterized by the utmost caution and sensitivity. Lawyer Marco Bianucci, operating as an expert lawyer in family law in Milan, adopts a strategy aimed at preserving the psychophysical balance of the children, preventing them from being exploited in parental conflict. Often, one parent attempts to use the child's wishes as a procedural weapon; the lawyer's task is to ensure this does not happen and that the procedural truth reflects the minor's actual well-being. The firm's strategy is not limited to mere legal assistance but includes a careful preliminary assessment to determine whether requesting a hearing is truly in the child's best interest or if, conversely, it is preferable to protect them from direct exposure to the court, perhaps relying on reports from social services or technical consultants.

The experience gained by lawyer Marco Bianucci allows him to guide the client in understanding how the judge will interpret the minor's statements. A child's refusal to see a parent does not always lead to the cessation of contact; the court investigates the deep-seated reasons for such refusal. In this context, the role of the divorce lawyer is crucial in presenting the judge with a clear and truthful picture of the family situation, supporting the reasons of the assisted parent always through the lens of child protection.

Frequently Asked Questions

At what age can my child decide which parent to live with?

There is no age at which a child legally decides independently. The law mandates listening from 12 years of age upwards, or even earlier if the child is capable of discernment. However, the judge listens to the minor's preferences but decides based on their best interests, which may not necessarily coincide with the child's expressed wishes.

How is a minor's hearing conducted in court?

The hearing is protected and informal. The judge speaks with the minor, often assisted by an expert (psychologist) and the Special Guardian of the minor, if appointed. Parents and party lawyers are generally not present to allow the child to speak freely, but the meeting is recorded or video-recorded.

Is the judge obligated to do what the child asks?

No, the judge is not bound by the minor's wishes. The child's preferences are a very important element of consideration, but they are placed within a broader context. If the judge believes the child's choice is contrary to their well-being or the result of manipulation (parental alienation), they may decide differently.

What happens if an adolescent child refuses to see a parent?

An adolescent's refusal is a complex issue that requires judicial intervention and often social services. A child cannot be physically forced to visit a parent, but the court will investigate the causes of the refusal to understand if the other parent bears responsibility or if there are deep-seated issues to be addressed through psychological support.

Request a consultation in Milan

Issues related to child custody and hearings require technical expertise and great human sensitivity. If you are going through a separation and want to understand how best to protect your relationship with your children and their rights, contact lawyer Marco Bianucci. The firm is located in Milan at via Alberto da Giussano, 26. A careful assessment of your specific case is the first step to ensuring a serene future for your family.