ORlrtre 82 thousand separations and 79 thousand divorces. This is the most updated Istat data, relating to 2023, which tells of the weddings wrecked in Italy. A number that does not take into account the cohabiting partners who leave themselves and who do not pass by the court, if they have no children. But children are often the real victims of a separation, because in the wars between former spouses, they can be manipulated by both.
From a parent who tries to “buy” their affection with the latest smartphone, or on the other who poses to the victim to arouse resentment in his children. They are manual cases, behaviors that may seem motivated for those who put them in place, but that do not interest the boys. Minors are entitled to relationships as serene as possible with both parents. As adults, they will have time to judge any errors of both.
Children and divorce: what the law says
Italian law protects the rights of minors in the event of separation and divorce. Grazia Ofelia Cesaro is a Milanese lawyer who has been dealing with thirty years of family law for thirty years. Until last May he was president of the National Union of Juvenile Chambers, made up of over 44 territorial associations of lawyers who deal with family and juvenile law. He is an expert in international separations, as vice -president of International Child Abduction Lawyers Italy. He also collaborated with the Ministry of Justice on the occasion of the Cartobia reform of the civil trial concerning family and minorslaw 206 of 2021, and subsequent implementation decrees. He dedicated his life to these themes, perhaps because she herself, as a child, has passed through the separation of the parents, together with his two brothers. It was inspired by his events to write the novel Dance in the rain (Feltrinelli)
Has the Cartobia reform introduced new rights?
No, the rights remain those already sanctioned by the civil code and by subsequent laws intervened on family law, such as that on divorce, on abortion, on the exclusive custody of the children who became joint, on the equalization of the children born inside and outside the marriage. The reform introduced important new features on a procedural level. For example, if the time of divorce after the separation have been shortened – because the divorce can be requested after six months from the separation if consensual – with the Cartobia reform was then also provided for the possibility of asking, with a single act, the demand for separation together with that of divorce.
Who is the minor’s lawyer?
It is a figure that already existed before law 206 of 2021, as a special curator of the minor, present in particular cases. For example, when there are conduct of irreversible abandonment by father and mother, without the possibility of recovering the parental functions, which lead to the minor for adoption. With the paper reform, even in cases of high conflict, the judge can appoint a special curator who protects the interests of the child, generally a lawyer. An example? Two spouses who fight over everything: from visits to any activity carried out by the child, creating a situation of strong discomfort. The minor’s lawyer tries to restore a bridge, listening to the minor and his desires and feelings, and trying to make the spouses think in war: there is the happiness of his son at stake, if they are bad they will also suffer from them. After 14 years of age, now it is also expected that the boy himself can ask for the appointment of one of his lawyers. It is a little known right, it should be disclosed in schools. In short, for the law, the separation is finally no longer just a problem between two adults.
Can it happen that a child refuses to see one of the parents?
Yes, and the Cartobia reform intervened also on this, because it may happen that separation creates an important emotional mourning to the parent who has the children with it, which closes in Riccio excluding the other, including in the closure, even unconsciously, the children. The minor’s lawyer can be useful to help make children understand that despite this fracture need both parents. Except there are authentic and autonomous reasons that justify the refusal, they are the right to continue to love and be loved by both parents, without being involved in their conflicts.
Children and divorce, the war between parents
A classic case is in fact that of the parent who fills the children or scratches the former spouse with gifts.
It is a short -sighted but widespread attitude. Gifts create ephemeral bond. “I carry my son to ski with me, I buy the equipment, so he enjoys”: that’s not all. The values that are transmitted. Despite the conflict that my brothers and I have lived as children, my parents never failed to the value attributed to education and culture. They taught us to “dance in the rain”, to find new balances even in a suffered separation. Destroying the image that the son has of the other parent also partially undermines his balance. A daughter to whom the worst possible of the father is said, for example, as an adult how will he relate to his partner? Will he be able to trust the other sex, if he lost the trust he had in the parent?
Violent men in the family, physical and psychological violence towards the mother to whom children often assist. Does the law protects enough women and children?
In the judicial field, thanks to the Cartobia reform, the family judges can operate within emergency proceedings to promptly protect minors and offended parties. The decision whether to remove the mistreating parent or the woman with minors by hosting them in a protected community must be taken by case. Beyond the emergency measures, it is important to prevent. Especially among young people, education to feelings is fundamental, among the boys the message must pass that the attitudes of abuse represent a defeat. Violence is not only linked to an intergenerational mechanism – if you have had a violent father, in turn you can become violent but also to social networks, myths, to belong to the group. Respect for the other as a person is a fundamental value: even separate parents can do a lot to transmit it.
What are parental plans?
It is a planning tool made mandatory in the procedures relating to minors with law 206 of 2021. In the act of separation, parents are asked to fill in, with the help of their lawyers, a plan that includes school, extracurricular activities, religion, holidays, any special needs. An educational project that photographs the situation of the minor today and tells how his future is imagined. In the event of disagreement between the spouses, the judge will formulate a proposal for the parental plan, taking into account those presented by the parents, evaluating the interests of the minor with knowledge of the case. Once, when separation, it could happen that it was not even known what age the child had!
Internationally, what are the most frequent problems?
Mixed couples, perhaps born with an Erasmus, who make a family in one of the countries of origin. If the relationship was shipwrecked, how to manage children? How to guarantee the parent’s right to see them, if the former spouse wanted to return to his place of origin? It is not just a matter of distance, there is often a difference in language, system of values, educational models.
In short, the family lawyer is less and less a jurist.
Interdisciplinary preparation is now fundamental. It is not enough to have a regulatory competence: it is necessary to know the mediation techniques, the psychology of the family. Today you can attend high schools of specialist training in “Person’s law, family relationships and minors”. Faced with the growing complexity, specialization is the future.
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