If the judge does not hear your child, or declares that they do not wish to hear them, it is natural to wonder whether their perspective has been overlooked and whether the measure can be contested. The hearing of the minor is not intended to shift the burden of adult decision-making onto them; rather, it serves to allow them to express opinions, needs, and fears regarding issues that concretely affect their life.
Refusal is not unconstrained by rules. I want to clarify when the hearing is provided for, what reasons may justify its omission, what must appear in the judge's decision, and what initiatives may make sense if the decision concerns custody, placement, visitations, or parental responsibility. The answer changes primarily based on the child's age and maturity, the content of the order, and the procedural stage.
The hearing is a right of the child, not a choice between parents
The minor does not decide in place of the judge. Hearing them allows them to express their opinion on decisions concerning them; the judge must then consider it in relation to age and degree of maturity. This principle is linked to the right of the minor child, who has reached twelve years of age or is younger but capable of discernment, to be heard in matters and procedures concerning them.
The capacity of discernment is the concrete ability to understand, in a manner appropriate to one's age, what is happening and to formulate one's own thoughts. It does not coincide with agreeing with one parent, nor does it require adult language. An eleven-year-old may possess it; conversely, an age above twelve does not render their serenity and the manner in which they are involved irrelevant.
The procedural rule is precise. Article 473-bis.4 of the Italian code of civil procedure provides for the hearing of the minor who has reached twelve years of age and also of younger children, if capable of discernment, in proceedings where measures concerning them must be adopted. This reference includes, for example, decisions on custody, time spent with each parent, primary placement, limitations on parental responsibility, and relations with significant family figures. You can read the text of the discipline in legislative decree no. 149 of 2022, articles 473-bis.4 and 473-bis.5 c.p.c..
When the judge may omit the hearing
Omission requires a reason indicated in the measure. The judge may decide not to hear the minor if the hearing is contrary to their best interests, is manifestly superfluous, is impossible due to physical or psychological conditions, or if the minor expresses the wish not to be heard. Therefore, a generic formula concerning family conflict, age, or the opportunity to avoid tensions is not sufficient: the decision must make comprehensible which reason provided by law applies in that specific case.
Stating that a hearing is contrary to the minor's best interests means that the interview, at that moment and with those issues to address, risks exposing them to harm greater than the utility of hearing them. Manifest superfluity, on the other hand, presupposes that the hearing would not add elements that are genuinely useful for the decision. These are distinct concepts: the first concerns a potential negative consequence for the minor; the second concerns the evident uselessness of the fulfillment.
Parental agreements follow a specific rule. When the judge must take note of an agreement on custody conditions, the hearing takes place only if necessary. The agreement does not cancel the child's rights, but it may render involving them directly non-essential if the conditions are consistent with their best interests and no elements emerge that require knowing their perspective.
For a minor under twelve years of age, a request for a hearing cannot be dismissed solely by referring to their young age. The Court of Cassation reaffirmed, with order no. 32359 of December 13, 2024, that the judge must assess the capacity of discernment and provide reasoning for the denial; insufficient reasoning may affect the validity of the decision. This principle is reported in the civil digest of the Court of Cassation of December 2024.
How the interview must take place and what protected hearing means
The hearing must protect the minor, not put them to the test. It is conducted personally by the judge, who may be assisted by an expert or another auxiliary. The expert can help make the interview appropriate, but does not replace the judge in gathering the minor's voice. If multiple children are involved, they are generally heard separately.
In common parlance, people often speak of a protected interview or hearing. This is not an automatic procedure that triggers simply because a conflict is heated. Protection derives from the concrete guarantees provided by the law: schedules compatible with school, premises suitable for the age even outside the courthouse when possible, understandable explanations regarding the nature of the proceeding and the potential effects of the hearing, serenity, and confidentiality.
Parents do not automatically attend the interview. Before the hearing, the judge indicates the topics to the parents, their counsel, and, if appointed, the special curator; they may propose topics for further exploration and participate only with the judge's authorization. This distinction prevents the minor from perceiving the interview as a direct confrontation with the parents or as the need to choose between them.
The law also provides for the audiovisual recording of the hearing. If a technical issue makes it impossible, the record must describe in detail the minor's behavior as well. A social services report, a technical consultancy, or a previous interview may be useful elements of the process, but they do not automatically coincide with the judicial hearing: it is necessary to understand what was gathered, when, for what proceeding, and whether it is sufficient for the decision to be made.
Refusal of the hearing, urgency, and situations of potential violence
The refusal to meet a parent requires particular attention. When the minor refuses to see one or both parents, Article 473-bis.6 c.p.c. provides that the judge shall proceed without delay to the hearing, gather summary information on the causes of the refusal, and may shorten the terms of the proceeding. The point is not to obtain a response from the minor that pleases an adult, but to understand the cause of the refusal before imposing or modifying visitation arrangements.
If family abuse, domestic violence, or gender-based violence are alleged in the proceedings, the protection changes further. Article 473-bis.45 c.p.c. establishes that the judge shall proceed personally and without delay to the hearing, avoiding any contact with the person indicated as the perpetrator of the abuse or violence. The hearing is not repeated only if the minor has already been heard in another proceeding, including criminal ones, and the acquired findings are considered sufficient and exhaustive.
A previous hearing does not always exclude a new hearing. What matters is whether the issues to be decided are the same, how much time has elapsed, whether the minor's condition has changed, and whether the previous hearing truly addressed the topics relevant today. In the presence of allegations of violence, it is inappropriate to ask the minor to face a confrontation with the person indicated as responsible: safety and serenity come before seeking mediation between adults. An institutional explanation of guarantees is available on the page of the Juvenile Court of Cagliari on the hearing of the minor.
What to do if the judge omits or denies the hearing
The first step is to read the judicial measure carefully. One must distinguish between a postponement of the hearing, a reasoned denial, an omission without reasoning, and a decision that has already ruled on custody or visitation. These are different situations. If the judge indicates a reason provided by law, the issue is to verify whether that reason is concrete and consistent with the case files; if it is not indicated, the flaw directly concerns the reasoning required by Article 473-bis.4.
In an ongoing proceeding, the request must explain why the hearing is useful for that decision: which issues touch the child's life, what maturity they display, what change or new fact makes hearing them necessary, and why other sources are not sufficient. It is not useful to turn the motion into a confrontation between parents or to ask the minor to confirm one parent's version. The objective remains to enable the judge to decide in the child's best interests.
When the judge adopts temporary and urgent measures pursuant to Article 473-bis.22 c.p.c., a reclamation to the court of appeal may be filed within ten days of the pronouncement at the hearing, or from communication, or from notification if it occurred earlier. The omitted hearing can be a relevant ground if that measure affected the children and the interview was due or the denial is not adequately reasoned. However, the reclamation is not an automatic remedy against every step of the process: it concerns the categories of measures indicated by the law.
The ten-day deadline is peremptory. Therefore, it must not be confused with the deadline to develop defenses in the merits proceeding. The current discipline of the reclamation, amended by legislative decree no. 164 of 2024 and entered into force on November 26, 2024, concerns temporary and urgent measures and those introducing substantial limitations on parental responsibility or significant modifications of custody and placement. The text can be consulted in legislative decree no. 164 of 2024, article 3.
If an unpostponable measure has been issued without prior summoning of the parties, because imminent and irreparable harm existed or the risk of compromising its enforcement, the judge must set a hearing within fifteen days to confirm, modify, or revoke it. In this step, it can be decisive to bring to light immediately whether the minor's hearing was necessary and whether precautions exist to conduct it without exposing the child to further distress. The reclamation of the measure adopted after this phase follows the rules established for temporary and urgent measures.
The special curator: when they can give a procedural voice to the minor
A special curator is not required in every separation. The curator represents a minor when the parents cannot adequately protect the child’s interests in the proceedings. Appointment is mandatory, among other cases, when the public prosecutor seeks termination of both parents’ parental responsibility or one parent seeks termination of the other’s, in the removal cases specified by law, where prejudice prevents both parents from adequately representing the child, or when requested by a minor aged fourteen or older.
The judge may also appoint the special curator when, for serious reasons, the parents are temporarily inadequate to perform that representation. Simple disagreement regarding visitation schedules or school is not sufficient on its own: a conflict of interest must emerge that affects the minor, not merely the relationship between the adults. The curator hears the minor in accordance with the legal safeguards and performs the activities assigned by the appointment order.
The appointment does not replace the hearing owed by the judge. However, it can be an important safeguard when the minor's voice risks being suppressed because both parents maintain positions incompatible with their best interests or because the proceeding involves highly impactful measures. To understand whether this path is pertinent, the facts that have already emerged, the type of measure requested, and the child's age matter.
Frequently asked questions
Can I request that my child be heard?
Yes, you can formulate a request within the proceeding. The request must indicate which decisions concern the minor and why their hearing can be useful. For those who have reached twelve years of age, the hearing is the rule; for younger children, it is necessary to highlight elements showing adequate capacity of discernment, without turning the request into pressure on the child.
Must the judge always hear a minor over twelve years old?
As a rule yes, but precise exceptions exist. The judge may not proceed if the hearing conflicts with the minor's best interests, is manifestly superfluous, is physically or psychologically impossible, or if the minor does not want to be heard. In proceedings based on a parental agreement on custody, the hearing takes place only if necessary.
Does the social services report replace the judge's hearing?
No, not automatically. A report can contain important information regarding the minor's condition, but the judicial hearing has its own functions and guarantees. The judge must assess whether what has already been acquired is truly sufficient for the decision. In matters of violence, a hearing conducted in another proceeding can avoid repetition only if the findings are sufficient and exhaustive.
Can I file a reclamation if the order does not hear my child?
Reclamation is possible against specific measures. It concerns temporary and urgent orders and certain temporary measures that substantially limit parental responsibility or modify custody and placement. The ordinary deadline is ten days from pronouncement at the hearing, from communication, or from earlier notification. A simple postponement of the hearing does not necessarily coincide with a reclaimable measure.
Can my child refuse to speak with the judge?
Yes, their will matters. If the minor manifests a wish not to be heard, the judge may decide not to proceed and must record this in a reasoned decision. It is inappropriate to convince them with pressure or suggest what to say: their voice is useful only if it is free and if the interview respects their emotional condition.
Essential references and guidance on the specific case
The main rules are Articles 473-bis.4, 473-bis.5, 473-bis.6, 473-bis.8, 473-bis.15, 473-bis.22, and 473-bis.24 of the code of civil procedure. For proceedings instituted after February 28, 2023, the reformed procedure introduced by legislative decree no. 149 of 2022 applies; the discipline of reclamation was updated by legislative decree no. 164 of 2024, in force since November 26, 2024.
Effective protection depends on the concrete measure. The date of the order, the content of the reasoning, the age and condition of the minor, any hearings already conducted, and the type of measure adopted determine whether it is necessary to request a hearing, urge a new assessment, or consider an appeal. If you have received a measure affecting your child's life without an adequately reasoned hearing, you can contact me.