When the spouses separate, the judge rules over the custody of the children. If shared custody is ordered, it is necessary that the children continue to stay with both parental figures, sharing equally the time to be spent with both with each other, except when evident obstacles are in place.
But what if the former spouse someway obstructs the shared custody? In this case, it is not possible to act autonomously, but it is necessary to make an application to the judge in order to formally request the exclusive custody. Indeed, the spouse who does not allow the shared custody to the other parent is liable for a criminal offence.
The Italian Supreme Court (judgement no. 38608/2018) declares that the conduct preventing shared custody entails the crime of intentional non-execution of a court order (art. 388 of the Italian Penal Code), either in case the conduct excludes completely or simply limits the right of visit. Still under discussion whether it is necessary, for the criminal offence to be recognized, that the right of visit is systematically denied or there is only a sporadic violation (e.g.: in case of holiday). On the other hand, a former spouse who does not exercise his/her right of visit is not committing any crime, because it consists of a mere faculty and not in an obligation.
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