Separation and the Right to Relocate: Commentary on Cass. civ., Ord. no. 33608 of 2021

The judgment of the Court of Cassation no. 33608 of 2021 addresses a highly relevant issue in family law: a parent's right to relocate their minor child's residence abroad, in the presence of shared custody. This matter falls within the broader debate on the balance between the developmental needs of minors and the individual needs of parents, especially in situations of separation or divorce.

The Case in Question

In the case examined by the Court, the mother, O.V.I., requested to relocate the residence of her son R.J. to Romania, where she would have had greater work and relational opportunities. The request had been denied by the court of Trento, which highlighted that the relocation could compromise the child's relationship with the father, G.R., who was already under a shared custody arrangement. The mother therefore appealed to the Court of Cassation, arguing that her right as a custodial parent should prevail.

The right of adults to choose their place of residence must be balanced with the child's right to maintain bi-parental relationships.

Legal and Jurisprudential Principles

The Court of Cassation, in rejecting the appeal, reiterated some fundamental principles. Firstly, Article 337 ter of the Civil Code establishes that the minor has the right to maintain a balanced and continuous relationship with both parents. Jurisprudence has already clarified that the relocation of residence by a parent does not automatically imply a loss of suitability to have custody of the children. However, the Court emphasized that every decision must be made with the pre-eminent interest of the minor in mind.

A Difficult Balance to Strike

The case in question highlights the difficulties judges face in situations of conflict between parents. The Court held that the relocation abroad would have jeopardized the emotional bond between the father and the son, compromising his psycho-physical development. The importance of ensuring the stability and continuity of family relationships is a crucial point, which often clashes with the personal aspirations of parents.

• The child's right to maintain stable relationships is paramount.
• Relocation abroad must be carefully evaluated.
• Every decision must consider the needs of both parents and the child.

Conclusions

The decision of the Court of Cassation no. 33608 of 2021 offers food for thought on the complexity of post-separation family dynamics. It highlights how, in the presence of shared custody, the relocation of a minor's residence abroad must be carefully assessed, always placing the child's interest at the center. This jurisprudential orientation invites parents to consider not only their own needs but also the impact of their decisions on their children's lives, promoting responsible and aware parenting.