Can an Aggressive Father Be Granted Child Custody?
The manifestation of aggression towards the child’s mother doesn’t always prevent the possibility of recognizing paternity and obtaining joint custody.
When parents of a child separate, it’s customary for them to share joint custody, which implies equal rights, responsibilities, and decision-making powers. However, how much can a violent history towards an ex-partner affect the judge’s decision? Does an aggressive father have the right to child custody? A recent ruling by the Court of Cassation addresses this delicate issue, raising questions and reflections. Let’s explore what has been decided.
Can a Father Who Has Been Violent with His Ex-Partner/Wife Recognize the Child?
Yes. As clarified by the Court of Cassation, with the ordinance 28380, First Civil Section of October 11, 2023, even a man who has been aggressive with his ex-partner can still obtain paternity recognition. After all, establishing a biological connection is a fact that a violent past cannot erase.
Can the Violent Father Obtain Child Custody?
The Constitution recognizes the right of all children to have a relationship with both parents, irrespective of the parents’ relationship, the deterioration of which does not negate the right and duty to be a good father or mother.
In general, even a man who has been aggressive with his ex-partner could potentially be a suitable parent. However, the judge retains the authority to evaluate each case individually, based on the personalities involved.
When Should the Violent Father Not Have Contact with the Child?
In the case ruled by the Cassation, a mother had filed a petition to prevent the child from being recognized and raised by the biological father due to his violent behavior. However, the Court dismissed the woman’s request. The decision was based on Article 250, paragraph 4, of the Civil Code, which establishes that the recognition of a natural child is a subjective right. This right can only be set aside if there is a concrete and serious risk to the psychological and physical well-being of the child, directly linked to the recognition of parenthood.
Hence, even a pending criminal case against the parent seeking recognition is not, by itself, a valid reason to deny this right.
What About the Aggressions Suffered by the Ex-Partner?
The Court of Appeal had taken into account the aggressions suffered by the woman but concluded that these incidents, although serious and condemnable, were not enough to consider the man as socially dangerous. The Court also emphasized that serious conflicts between parents, even if they involve threats or violence, as long as they do not directly concern the children, are not a valid reason to deny joint custody.
The ruling by the Court of Cassation reaffirms the importance of the parent-child relationship and the right of a father to paternity recognition and joint custody, even in the presence of a problematic past. However, it also underscores the importance of assessing each situation in its specific context, always keeping the child’s well-being at the center.
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