Children heard in separation proceedings

Children heard in separation proceedings

In separation proceedings, children can be heard by the judge if they are 12 years old or older, or if they are considered “capable of discernment.” The hearing is conducted in a private and age-appropriate setting, ensuring calmness and confidentiality.

Parents undergoing a separation procedure often worry about how their children will be involved. They wonder if their children will be required to appear in court and how the judge will include them in the decision-making process. This article explores the legal provisions governing the hearing of minors during the separation procedure and provides information on the process.

What are the new legal provisions for hearing minors during separation?

The Cartabia reform introduced new articles in the Code of Civil Procedure that regulate the hearing of minors in relevant proceedings. According to Article 473-bis 4, minors aged 12 and above, as well as younger ones deemed “capable of discernment,” must be heard, and their opinions must be considered, taking into account their age and maturity level.

The judge may exclude the minor’s hearing only if there are circumstances that prevent it, such as the best interests of the child or physical and mental impossibility.

When is the minor brought to court?

The law states that the minor’s hearing must occur in all proceedings concerning them, including custody and placement issues with either parent. The child can express their preference for staying with either the father or the mother. The judge may deviate from these indications only if it is in the child’s best interests and does not cause significant trauma.

How are minors heard during the separation procedure?

According to Article 473-bis 5 of the Code of Civil Procedure, the judge must hear the minor, potentially with expert assistance, in an appropriate and confidential setting, even outside the courtroom. The hearing should be scheduled to accommodate the child’s school commitments, ensuring their calmness and confidentiality.

The judge may decide to conduct the hearing without the presence of the parents.

What topics are addressed during the hearing of minors?

The judge informs the parents and, if appointed, the child’s legal guardian in advance about the topics to be discussed during the hearing. The parties can propose additional topics through their legal representatives, but the presence of the parties requires specific authorization. Additionally, the hearing may take place behind a one-way mirror to ensure authentic responses and the child’s tranquility.

Audiovisual recording of the hearing is possible, or alternatively, the minutes should not only capture the child’s answers but also provide a detailed account of their behavior during the hearing.

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