Child Relocation 2024 Comparisons

The Italian notion of responsabilità genitoriale appears very similar to the English notion of “parental responsibility”. Until 2014, the decision-making capacity, and duty, of parents in Italy was referred to as potestà dei genitori, according to a tradition going back to the patria potestas of Roman law, and, apart from its renaming, the terms and provisions have varied little since the general reform of family law dating back to 1975.

According to Article 316 of the Italian Civil Code, parental responsibility belongs to both parents jointly, and must be exercised by mutual agreement, in pursuance of the best interests of a child, taking into account the child’s personal inclinations and abilities, particularly, but not exclusively, with regard to their preferred habitual residence, and to all decisions concerning education and upbringing.

If parents cannot reach an agreement on any issue of specific importance to their child, either of them can ask a judge to intervene. However, before making any decision, the judge must hear each parent, and the child if the child is 12 years old or older – or under 12 if considered mature enough to have a say – and must then endeavour to steer all parties towards a satisfactory solution.

Concerning financial matters, according to Article 320 of the Italian civil code, every decision related to the child’s estate, or property, outside the bounds of ordinary administration must be specifically authorised by the judge, and whenever a conflict of interest arises between the child and those to whom parental responsibility to the child falls with regard to a specific decision, the court will appoint an ad hoc guardian (curatore speciale).

Finally, according to Article 321 of the Italian Civil Code, an ad hoc guardian can also be appointed if the parents are not willing or able to take the specific action which appears to be required to meet the best interests of the child.

Based on Articles 250 and 254 of the Italian Civil Code, to be granted parental responsibility, a birth mother must recognise (riconoscimento) their child. This can be done upon the child’s birth while its birth certificate (atto di nascita) is being prepared, or by means of a simple declaration to the citizens’ registrar (ufficiale di stato civile) following the child’s birth – or even before, once the child has been conceived.

A child can be also recognised later by a public deed made by a notary (atto pubblico), or even in a will. However, according to Articles 256 and 257 of the Civil Code, in all cases, such acknowledgment is irrevocable and not subject to restriction.

The only conditions to a mother’s right to acknowledge parentage of a child are that the mother must have reached the minimum age of sixteen (if this is not the case, the child can be recognised anyway if the minor parent obtains authorisation by the judge), and that the child must not have been conceived by way of an incestuous relationship (however, according to Article 251 of the Civil Code, if the acknowledgement is deemed to be in the best interests of the child, it could be authorised by the judge even in this case).

The rules that apply to the acknowledgment of a child by the mother apply also to the acknowledgment of parentage by the father if the parents are not married (in this case, see 1.5 Relevance of Marriage at Point of Conception or Birth). However, according to Article 250 of the Italian Civil Code, if the child is not recognised jointly by the parents, the acknowledgment by the second parent (who, almost without exception, will be the father) is subject to the agreement of the parent who has already recognised the child (almost invariably the mother).

However, the consent to the acknowledgement by the mother cannot be withheld if its refusal is not deemed to be in the best interests of the child; in this case, the parent who wishes to acknowledge a child already recognised by the other parent can ask the judge to authorise the acknowledgment by court order.This order can also be applied with respect to child's last name, custody, visiting rights and financial support of the child.

In all cases, acknowledgment of a child who is at least fourteen years old cannot be made without that child’s consent.

Italian law provides that adoption is the only way to be granted parental responsibility for a non-biological child (see 1.7 Adoption).

However, people other than a child’s parents can be granted custody (affidamento) without acquiring parental responsibility when the child’s biological parents are deemed unfit to exercise parental responsibility but the situation is not serious enough to justify a full adoption. In this case, the court will put in place measures targeted at monitoring the situation, possibly by the appointment of social workers.

Since 2014, all residual differences between the children of married or non-married couples have been removed (one of these being, for example, that children of married couples were referred to as “legitimate” children, and those of non-married children were referred to as “natural” children).

However, according to the presumption of paternity (presunzione di paternità) set out by Article 231 of the Italian Civil Code, parental responsibility for the child of a married couple belongs, automatically, to the husband of the child’s mother, without any need for acknowledgement of the child being conceived or born during the marriage.

According to Article 232 of the Civil Code, presumption of paternity applies when a child is born between the date of the parents’ wedding and three hundred days after the annulment of their marriage or their divorce, or the first appearance of the parties before the judge in legal separation proceedings.

While Italian Law No 76 of 20 May 2016 on same-sex unions does not specifically allow for any kind of adoption, and, in Italy, any kind of heterologous medically assisted procreation is forbidden, according to a June 2016 decision (Cass., 22 giugno 2016, No 12962), the Italian Supreme Court (Corte Suprema di Cassazione) confirmed that, at least in principle, and if this is deemed to be in the best interests of the child, a step-child adoption (adozione in casi particolari – see 1.7 Adoption) can take place within the context of a same-sex relationship (unione civile fra coppie dello stesso sesso).

In Italy, there are two main types of adoption: legitimating (adozione legittimante), where a child assumes the same position in a family as a biological child, such as in national and international adoption; and non-legitimating adoption (adozione non legittimante), which has more limited effects. All facets of adoption are subject to the provisions of the Law No 184 of 4 May 1983.

While, for both legitimating and non-legitimating adoption, the adoptive parents are granted full parental responsibility for the child, the main difference between both types of adoption is that the latter does not remove the existing filial ties with the members of the child’s biological family.

National adoption (Articles 6-28 of Law No 184 of 4 May 1983) is only open to married couples living together continually for at least three years and thus able to guarantee that the adoptee can rely on the stability of their relationship. The age of the adoptive parents must usually be between 18 and 45 years more than that of the child. It is possible to adopt several children, preferably siblings.

In order to be subject to adoption, a child must be declared adoptable by the Tribunale per i Minorenni based on a declaration of adoptability (dichiarazione diadottabilità) issued by a juvenile court in a specific order – such as at the end of court proceedings to establish a state of enduring abandonment (eg, if the child is already in foster care, provided that this situation has not been forced on the parents by exceptional circumstances).

A second procedure then takes place, again before the juvenile court, upon the request of the would-be adoptive parents. Their fitness as parents is ascertained, usually with the involvement of social workers after a period of pre-adoptive custody lasting one year (extendable to two) and a final verification that the adoption is in the best interests of the child and that all conditions required by the law have been fulfilled. Children of 12, or considered mature enough to have a say if younger, must agree to be adopted.

International adoption is governed by Articles 29-43 of Law No 184 of 4 May 1983 and concerns the adoption by couples resident in Italy of foreign children declared adoptable in their country of origin. The adoption must take place in accordance with the principles set by the Hague Convention of 29 May 1993. The process is open to couples who, upon request, have been declared fit to adopt by the juvenile court, and it takes place following complex proceedings held in cooperation with specifically authorised organisations. International adoption has the same effect as national adoption.

According to Articles 44-57 of Law No 184 of 4 May 1983, non-legitimating adoption is referred to as “adoption in specific situations” (adozione in casi particolari), and it allows for the adoption of a child who has not been declared to be in state of enduring abandonment in the following four cases:

• when the child is orphaned by two parents and has been in the custody of relatives or a person to whom they have a stable, long-term relationship;
• when one spouse wishes to adopt the biological or adoptive child of the other;
• when the child has a physical or mental impairment; and
• when pre-adoptive custody is not possible.

This kind of adoption requires the agreement of any child older than fourteen and of their biological parents and their spouse (in Italy it is possible for a minor to enter into a marriage, provided that the minor is at least sixteen years’ old and has been authorised by the court), but, if consent is refused without justification, the juvenile court can order the adoption (this cannot happen if the biological parents refusing consent for the adoption still exercise parental responsibility on the would-be adoptee, or if the consent is refused by the spouse of the adoptee, provided that the couple lives together).

“Adozione in casi particolari” is subject to revocation in certain very specific cases.

In accordance with Article 316 of the Italian Civil Code, as with any decision of importance affecting a child, relocation to another country requires the agreement of both parents, even if the child is in the sole custody of one parent.

Without the required parental consent, a child’s relocation has to be authorised by the court (Tribunale).

If the child’s parents are co-habiting, proceedings for applying for the relocation must be held in simplified form according to Article 473 bis.38 of the Italian Code of Civil Procedure which applies to all disputes concerning decisions regarding children of non-legally separated or divorced couples. However, if, after the filing of the petition, one of the parties applies for a full legal separation or custody judgment, the case should be dealt with within this new context, and only urgent and temporary measures will be looked at on a more simplified basis.

If the issue of relocation arises when proceedings for legal separation, divorce or custody of a child born of non-married parents are already pending, the relevant measures will fall within the competence of the same judge of those proceedings and will be treated within the scope of these, possibly by means of a provisional order, according to Article 473 bis.23 of the Italian Code of Civil Procedure.

If the parents disagreeing on relocation are already legally separated or divorced or, since they are not married, a final order concerning custody of their child has already been issued, proceedings concerning relocation will have the purpose of modifying orders concerning children already in place, and should take the same form as legal separation, divorce and custody proceedings, according to Article 473 bis.47 of the Italian Code of Civil Procedure.

In all cases, the judge must hear any child of at least 12 years’ old, or, if younger, deemed mature enough to have a say, as already stated in 1.1 Parental Responsibility and, according to Article 473 bis.8 of the Italian Code of Civil Procedure, may appoint a guardian ad litem (curatore speciale, or lawyer, not to be confused with the curatore speciale of Article 321 of the Italian Civil Code – see 1.1 Parental Responsibility). A lawyer such as this is appointed in almost every serious case, but in particular when parents appear unable to fairly represent their child in court, or whenever a child of 14 or older asks a judge to represent them. After their appointment, this person will act as the attorney of the child (who therefore becomes to all effects party to the judgment) and may also be given by the court the power to represent the child outside the context of the pending proceedings, to carry out certain acts such as those required to fulfil the child’s best interests.

Once the appropriate proceedings have been followed, in order to assess whether the move is compatible with the child’s best interests, according to article 473 bis.25 of Italian Code of Civil Procedure the judge may appoint a court expert (consulente tecnico di ufficio) who will usually be required to provide, in writing, a full evaluation of the situation of the family and set out the measures which, according to the expert’s opinion, are most likely to ensure the that the child’s needs are fulfilled (this includes visiting rights, if applicable). Each party will have the right to appoint their own expert (consulente tecnico di parte) to assist the court expert.

According to Article 473 bis.27 of the Code of Civil Procedure, the judge can also order the intervention of social services to evaluate the family situation and provide the court with a written report. The effectiveness and timeliness of social workers’ interventions are subject to broad variations, depending on where in Italy proceedings take place. While evaluating a case, social workers may avail themselves of the help of psychologists, who can be privately hired, in agreement with the parties, or, if no agreement is reached, can be employees of the same public agency to which the social workers belong or of other public organisations.

All decisions on relocation, regardless of their permanent or temporary nature, will be subject to appeal (or opposition, if rendered between parents still co-habiting), but will usually be immediately effective, even if challenged.

If no agreement is reached on arrangements regarding visiting rights and maintenance obligations, any judicial decision concerning relocation will settle issues and may contain provisions concerning travel expenses and the duty of each parent to accompany their child or to provide necessary travel arrangements.

As stated in 1.1 Parental Responsibility, according to Italian law, all decisions concerning the place of dwelling and the relocation of a child fall within the scope of issues of major importance, and are therefore subject to the same serious treatment regardless of whether a move is domestic or international.

An internal relocation can, in fact, give rise to far more problems than an international one. For example, from a North Italian perspective, a “domestic” move to some remote location in southern Italy not within easy reach of an airport or a high-speed train station can have more radical consequences on contact between a child and the parent left behind than a move to a European capital city or, for example, to Switzerland.

It is important to note that any move within Italy that is carried out illegally can be subject to less effective remedies than an international abduction because the Hague Convention (see 3.2 Steps Taken to Return Abducted Children) will not apply. Consequently, any measures aimed at protecting the rights of the parent left behind would simply be dealt with internally, and handled much more slowly than the judgments dealt with on the fast-track basis reserved for Hague Convention return applications in particular, and for international cases in general.

Taking a child out of the Italian jurisdiction without the relevant consent referred to in section 2. Relocation is illegal, and may constitute a criminal offence under Article 574bis of the Italian Penal Code.

Italy is a signatory of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Consequently, if a child is abducted from Italy to another signatory country, it is possible to submit to the Italian Central Authority (the Dipartimento per la Giustizia minorile e di comunità del Ministero della Giustizia – Ufficio II – Autorità centrali convenzionali) an application for the return of the child according to its provisions.

Furthermore, provided that Italy is a European Union member State, if the child is abducted to another EU country, the implementation of the provisions of the Hague Convention will be strengthened by the additional rules set out in Articles 23-29 of Council regulation (EU) 2019/1111 of 25 June 2019 “on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction”.

These rules are aimed at a further acceleration of the treatment of a return application, and at ensuring that the courts of the member state where the child was habitually resident and from which the child has been illegally abducted retain their international competence on matters regarding parental responsibility (which also cover decisions concerning habitual residence), notwithstanding the denial of a return application, whenever the related decision is grounded solely on the reasons set out in Article 13 of the Hague Convention (ie, when the child is found to have been abducted from the country where they were habitually resident but the parent left behind was not actually exercising custody rights, or when a return would expose the child to serious risk).

This means that, according to the EU Regulation system, the final decision concerning the return of the child is taken by the judicial authority of the country from which the child has been abducted, because, even if the authorities of the country of destination were to deny the return application made under the provisions of the Hague Convention, a subsequent order of return issued by the courts of the country of origin, which retain their jurisdiction, would be fully enforceable.

If, conversely, the child has been taken to a country which is not a signatory of the Hague Convention, lacking any bilateral agreement, the only effective way to pursue their return would be to obtain an order to that effect from the authorities of the same country.

As stated, Italy is a signatory of the Hague Convention and, therefore, if an abducted child is taken within its jurisdiction, the provisions concerning their return will be fully applied.

The intervention of the Italian Central Authority is free of charge, and judicial proceedings related to an application for the return of a child do not require the active participation of the applicant, who, therefore, is not obliged to instruct a lawyer. However, any legal assistance (which is not essential but may be strongly recommended) should be paid according to the terms agreed between client and attorney.

Furthermore, in several Hague Convention signatory countries, in order to apply for the return of a child it may be necessary to appoint a lawyer who must be paid according to the rules in place in the same country. Official data concerning numbers of Hague Convention cases processed in Italy can be found on the website of the Italian Ministry of Justice at the following link.

While official data does not contain information on the outcome of Hague Convention applications for return processed by the Italian authorities, the treatment of the related proceedings within the Italian jurisdiction is mostly unbiased and respectful of the principles underlying the Convention, with fairness shown to the positions of the parties applying for immediate return as well as to the parties opposing the application, with the best interests of the children involved generally the only factor considered.

According to Article 7 of Law No 64 of 15 January 1994 implementing the Hague Convention provisions within Italian Jurisdiction, applications for the return of children abducted to Italy must be treated as follows.

• Any request for the return of the child from abroad is processed by the Italian Central Authority, which will usually entrust an office of the police specialised in treating juvenile cases with an initial assessment of the situation. This generally entails summoning the parent who has the child in order: (a) to confirm the presence of the latter; (b) to see if the former is willing to spontaneously return the child; and (c), if this is not the case, to gather any additional information.
• If the abducting parent does not agree to return the child to their country of habitual residence, an application must immediately be transmitted to the public prosecutor’s office attached to the relevant juvenile court (pubblico ministero presso il tribunale per i minorenni) in the place where the child has been abducted (in Italy, there are 26 court-of-appeal districts, each also being the seat of a juvenile court).
• The public prosecutor will immediately submit to the juvenile court an urgent request (ricorso urgente) for an order of return of the child, opening proceedings to this effect, and the president of the court will issue an order setting the day of the hearing and the deadlines for the filing of the written defence of the parent who has the child.
• While the “essential” parties in the proceedings are the public prosecutor and the parent opposing the application, who must be heard regardless (as must the child if aged 12 at least, or considered mature enough to express an opinion if younger), the applicant parent will be informed about the hearing by the Central Authority and has the right to appear in court and take a position in the proceedings at their own expense.
• The proceedings should be carried out expeditiously as possible, without any formalities, and will usually end with a final order after a single exchange of written defences and one hearing. While the court can examine any proof submitted by the parties and order any fact-finding as it sees fit (including hearing witnesses and appointing court experts), such related activities will be limited to only what appears to be strictly necessary, or may be rejected altogether in favour of speed (for example, while uncommon, the imposed deadline for written statement of a few days, or even 24 hours, is not unheard of).
• The final order by the juvenile court is subject to a limited type of appeal (ricorso per cassazione) before the Corte di Cassazione, or Italian Supreme Court, which can only revoke or modify the order if it has been issued without complying to specific law provisions, being barred from any new assessment of the facts. Furthermore, the order or first degree will usually not be stayed if appealed.
• The deadline set by law requiring the final order to be issued by the juvenile court within 30 days of the date upon which the application for the return of the child was submitted to the Central Authority is not realistic, and the actual average timescale of the first degree of proceedings for return can vary between a few months to a year. Second-degree proceedings before the Corte di Cassazione will take much longer, but, as stated, with no stay of the first order (which is highly unlikely), this will have a limited impact on the outcome of the return application if it has been successful in the first degree of the judgment.

Italy is a signatory of the Hague Convention.