The Court of Cassation clarifies that the geographical distance between parents does not, in and of itself, preclude joint custody. An exception in favor of sole custody is legitimate and warranted only when physical distance is compounded by serious and proven conduct demonstrating a lack of interest in the child.
1. Joint Parenting and the Exceptional Nature of Sole Custody
As is well known, in Italian family law, joint custody (Art. 337-ter of the Civil Code) constitutes the standard arrangement. The legislature protects the child’s right to maintain a balanced and continuous relationship with both parents (best interests of the child).
Article 337-quater of the Civil Code provides for sole custody as an exception applicable only if the shared custody arrangement is “detrimental to the child’s best interests.” To grant sole custody, the judge must rigorously verify a parent’s manifest failure to provide proper care or unsuitability, to the extent that shared custody would cause concrete harm to the child.
2. The facts of the case and the proceedings
The dispute at issue stems from the decision of the Court of Milan, which granted the mother sole custody of their minor daughter. The father, who resides abroad (Portugal), was granted visitation rights subject to the assessment of Social Services and verification of his genuine desire to reestablish a stable relationship.
The Milan Court of Appeals upheld the sole custody ruling and adjusted the man’s child support obligation to 1,100.00 euros per month, adding a requirement for 100% reimbursement of extraordinary expenses. The father filed an appeal with the Court of Cassation, arguing that his residence abroad had been wrongly equated with a lack of interest in his daughter.
3. The Supreme Court’s Decision: Distance as a Mere Logistical Obstacle
The Supreme Court rejected the appeal, clarifying the impact of geographical distance on custody arrangements.
The judges ruled that joint custody cannot be precluded by the objective distance between the parents’ places of residence. Distance – whether within the country or across national borders – is a purely logistical and organizational obstacle. It affects daily life and requires a flexible adjustment of schedules and visitation times, but it cannot serve as a basis for a presumption of unsuitability as a parent. Modern means of communication and transportation now allow for active participation in children’s lives even from a distance.
4. The Real Deciding Factor: The Parent’s Conduct by Omission
The confirmation of sole custody for the mother does not, therefore, rest on the father’s residence in Portugal, but on his actual conduct, marked by constant passivity.
The trial judges found specific instances of passive conduct, such as a lack of interest in meeting with his daughter, a failure to provide evidence of regular video calls, irregular payment of child support, and failure to appear at the hearing – all of which were deemed sufficient proof of the father’s lack of interest to justify granting sole custody to the mother.
In other words, it is on the basis of this pattern of moral and material neglect that the Supreme Court considers sole custody legitimate in cases of significant geographical distance between the non-custodial parent and the child. Geographical distance remains a neutral factor: the decision is determined by the proven and manifest absence of the father’s presence.
Conclusions
The ruling provides a practical guideline and clarifies an important principle which, in line with previous Supreme Court case law (see, among others, Cass. March 6, 2019, No. 6535), clarifies a particularly important issue that frequently arises in the context of international family law: geographical distance requires organizational solutions and targeted parenting plans, but it does not shift the legal focus of custody. The loss of joint custody is determined exclusively by the conduct of the parent who transforms physical distance into definitive emotional and financial abandonment.