kathryn schulz is a journalist who has written books, won awards and understood that the loss (Lost), the meeting (Found) and the union (And) are the engine of our lives. I am also of the beautiful memoir of him just released – Lost & Found (Bompiani) – where he writes: «A separation or divorce involves the loss of not only someone we love, but also of the texture of our days and of a vision of the future that was dear to us». And what of this plot will be – especially if there are children in the middle – will also depend on laws and judges.
Divorce, with the reform what happens if there are children
Last February 28th a reform has come into force which also dealt with the issues of family law and minors in relation to separations: Marta Cartabia, former Minister of Justice wanted it. At the center of the news are they, the children, and the parents who – we read – will be obliged to submit, from the beginning of the process, a Structured Parenting Plani.e. a list of aspects relating to child management.
«They seem like trifles, in reality they are about twenty points that create order in an already emotionally complex situation. It is a functional novelty» explains Laura Gaetini, marriage lawyer and expert in family law. «The fact that it is imposed from the beginning on the parents of regulate all those aspects that will have to be gradually addressed in the future it is a good starting point for a peaceful life. Neither parent realizes how important these agreements are and making them immediately forces a responsible separation ».
For the reform that has just come into force, exes must be “educated” to separate
What is the Structured Parenting Plan
What are we talking about? Of school commitments but also of medical visits, the place where to meet the other parent, the methods of communication between parents and between parent and child, holidays, tax deductions, the choice of practicing religion at school. For the moment there are no periodic reviews of this contract. The reform, however, contains another novelty regarding the hearing of the minor by the judge.
«It is an aspect introduced by us in the past, on the impetus of international treaties where the child had to be considered as a “subject” of the process. With this reform, however, he can finally refuse. That is, if he doesn’t feel like it, no one can force him. In first place now there is the interest of the children» specifies Gaetini.
Never let one parent choose over the other
«Although, albeit optional, the hearing of the minor still doesn’t convince me in practice. The premise of all this is that the children heard in court are those who find themselves in a conflict that their parents are unable to resolve. Which means involving them in a “conflict of loyalties” as preferring one position over another will lead them to side with one or the other. It is already an emotionally difficult situation for children, often preceded by a period in which adults try to convince them of the validity of their theses. Do you know what the craziest thing is? It is that more often than not the more manipulative and arrogant parent prevails» explains the lawyer.
Who knows if the parents of Separated together, Diego Luna’s Netflix series, wanted to avoid all this: Julia and Ruy are a couple who, after the separation decides to continue living in the same house for the sake of his daughter. Julia will try to tell her daughter «We will still be together but in a different way» and the little girl will answer: «Is it allowed?».
No more “wars of the Roses”
What is generally allowed is the dilemma of any separation. And in any case, reforms are always needed because everything that happens afterwards generally upsets one out of two families. In that Cartabia, finally, more powers are assigned to a figure, the guardian of the minoror to the person who represents the interests of the child in court in cases where it cannot be adequately represented by the parents.
«Having more powers means that he will now be able to take all the decisions concerning the ordinary management of the minor, from education to education, from health to residence. The aim is to make up for the serious parental deficiencies» explains Gaetini. One thing is certain though: compared to the separations of the seventies – true “wars of the Roses” – i levels of conflict between exes have now dropped. Even if the role of the “law” remains decisive. The confirmation comes when we compare ourselves with other realities. The American one, for example. «Separating a child from a parent is perhaps the greatest harm that can be done to a childyet the “divorce system” in the US encourages it» specifies Enrico Pellegrini, an Italian lawyer based in New York for over twenty years.
Divorce, what happens in America
“It is the law that encourages exes to quarrel,” he explains. «America is not like Italy where the loser pays all the legal fees. The opposite applies, i.e. each party pays its own costs. That way, no one has an interest in ending it, least of all in a divorce. I believe that on the subject of “protection of children” the real America is in Italy, a country where the “divorce system” is less traumatic for them» adds Pellegrini, author of Infinite (The Ship of Theseus), a partly autobiographical novel starring Penelope, a three-year-old girl in the middle of a divorce.
Here dad Chris hasn’t been able to see his little girl for months because the lawyers continue to argue with each other and make the clients argue – ergo to earn – before a Parenting Plan is reached. “A reform like the Italian one in those parts wouldn’t be bad at all,” adds Pellegrini. «Making the plan early allows children to spend time with both parents. In the excruciating wait, the father in the novel tries to see his daughter but is accused of “attempted kidnapping”, do you realize?» she points out.
But that’s not all: the ex-wife’s lawyers will also send “escorts” to this man’s house to try to obtain other material to deal with against his right as a father, or rather the accusation of “adultery with a prostitute”. “Any reform should be based only on fact that arguing is the thing that hurts the children the most. This means that the process must be fast, the role of lawyers limited and that of parents guided by mandatory courses in ethics. Exes must be “educated” to divorce. Children, on the other hand, must be kept out of the process and away from obvious manipulations » concludes Pellegrini who, like his father Chris does in the book, managed to change the law of the state of New York regarding child custody.
The end of euphemisms
Speaking of speed of processes, another aspect of the Cartabia reform is that exes can apply for separation and divorce at the same time. However, it is specified that the divorce can only be pronounced following a definitive sentence on the separation and after the legal terms (one year in the case of judicial separation, and six months for the consensual one). In any case, who remembers the great absentee in the first divorce law? The word “divorce”, in fact. He preferred to sweeten it with “dissolution of the marriage” and “cessation of the civil effects of the concordat marriage”.
“The word separation was introduced as a compromise solution to bring socialists, radicals and communists – in favor of divorce – into agreement with the Christian Democrats and MSI against them. And at that time the separation lasted seven years» concludes Gaetini. She’s been through a lot of water under the bridge.
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