Commentary on Judgment Cass. civ., Section I, Ord., no. 21823 of 2022: Child Custody and Maintenance Obligation

The recent ordinance of the Court of Cassation, no. 21823 of 2022, offers significant insights regarding the separation of spouses and child custody issues. In the case in question, the Court confirmed the exclusive custody of the minors to the father, highlighting how the mother's inadequate behaviour justified this decision. This article aims to analyse the reasons for the judgment and the consequences for the parties involved.

Context and Development of the Proceedings

The case originated from a separation between G. T. and P. T., in which the mother requested shared custody of the children, while the father requested exclusive custody. The Court of Tivoli, in the first instance, had granted custody of the minors to the father, justifying the choice with the mother's behaviour, who had failed to fulfil her maintenance obligations and had hindered the father's visits. The Court of Appeal, confirming the first-instance judgment, emphasised the difficulties in collaboration between the parents and the importance of the minors' well-being.

The judgment highlights that the constant failure to fulfil the obligation to pay the maintenance allowance and the discontinuous exercise of the right of visitation justify exclusive custody to the other parent.

Legal Principles and Regulatory References

The Court recalled principles already established by case law, such as the need to ensure the best interests of the minor, in line with art. 337 ter of the Italian Civil Code and the New York Convention on the Rights of the Child. The decision for exclusive custody was motivated by the mother's lack of collaboration and her inability to fulfil her maintenance obligations, elements that led to a negative assessment of her parental capabilities.

• Art. 337 ter of the Italian Civil Code - General provisions on custody
• New York Convention on the Rights of the Child of 1989
• Consolidated case law of the Court of Cassation

Conclusions

Judgment no. 21823 of 2022 represents an important confirmation of the legal principles concerning child custody and the maintenance obligation. It highlights how parents' behaviour can significantly influence judges' decisions, emphasising the importance of responsible and collaborative conduct for the children's well-being. The Court of Cassation, partially upholding the mother's appeal, reiterated the need to carefully examine maintenance requests, in protection of the rights of each party involved.