Can a Non-Resident Parent Have Joint Custody?

Can a Non-Resident Parent Have Joint Custody

Can a non-resident parent who does not live in Italy have the right to joint custody of their children, or should exclusive custody be applied?

When parents separate, arrangements must be made for the custody of minor children. According to the law, the offspring should continue to have contact with both parents, taking into account the new situation created after the end of the family union. This article addresses the question: Can a parent residing abroad have joint custody?

It may seem challenging to imagine that a parent leaving Italy for work or a fresh start elsewhere can continue to spend time with their children, at least not with the frequency that joint custody implies. However, legal precedents disagree. Let’s explore why.

Joint Custody: What Is It and How Does It Work?

Joint custody allows children of separated parents to spend time with both the mother and father in a roughly equal manner, adhering to the principle of shared parenting.

The law establishes joint custody as the norm in separation cases, resorting to exclusive custody only when one parent is clearly unfit to be with the child, such as due to violence, substance abuse, or other issues.

Even in joint custody, there is often a “primary parent” who spends more time with the child by continuing to live with them in the family home. The parent with whom the child continues to reside is called the “custodial parent,” usually the mother.

The non-custodial parent can have scheduled time with the child, ensuring an adequate period for interaction.

In summary, joint custody doesn’t mean an exact 50-50 time split, which could be destabilizing for the child. Instead, both parents retain the right to actively participate in the child’s life.

Exclusive Custody: How Does It Work and When Is It Applied?

Exclusive custody is a residual remedy applied only if one parent is proven to be entirely unreliable.

Exclusive custody can be granted to the mother if the father is violent, leads an objectionable and uneducative lifestyle, or shows complete disinterest in the child.

Exclusive custody essentially results in two consequences:

The non-custodial parent has the right to visit the child and keep them only on specific occasions (holidays, weekends, etc.).
Limited parental responsibility, restricting the non-custodial parent to deciding on non-daily matters, such as medical choices.
Non-Resident Parent: Joint or Exclusive Custody?

Addressing the core question of whether a parent living abroad has the right to joint custody, the Supreme Court asserts that joint custody is the default, even for a non-resident parent, unless severe circumstances threaten the child’s well-being and psychophysical development.

Distance alone does not justify exclusive custody over joint custody, according to legal precedent. Children always have the right to maintain contact with both parents.

The Supreme Court emphasizes that a non-custodial parent’s diligence in exercising visitation rights, even when residing abroad, demonstrates their ability to handle the responsibilities associated with joint custody.

For joint custody to make sense even with a non-custodial parent abroad, they must actively demonstrate an interest in the child by exercising their visitation rights.

Conversely, complete disinterest in the children, evidenced by a lack of visits, justifies resorting to exclusive custody.

VGS Lawyers is a law firm specialised in Child Custody under Italian Law. For assistance please contact

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