Exclusive and Super Exclusive Custody: Prerequisites

The court grants exclusive custody when it deems that shared parenting does not protect the child, based on concrete and assessable circumstances. Exclusive custody is established when a parent fails to care for or educate the child, does not meet the child’s needs, has been convicted of serious crimes, is dependent on alcohol or drugs, or has engaged in any form of violence—physical or verbal—against the other spouse or the child. Additionally, systematic failure to pay child support may lead to exclusive custody.

Exclusive custody does not automatically suspend parental responsibility but limits it; the non-custodial parent retains the right to participate in decisions regarding the child’s health and education and has a legal and moral duty to maintain contact with the child.

Super exclusive custody is reserved for the most severe cases where a parent is deemed completely inadequate. The “super custodial” parent makes all decisions regarding the child’s health and education without involving the other parent. However, the other parent retains parental responsibility and is obligated to pay child support.

This form of custody may be sought when the non-custodial parent is violent or otherwise unfit. It can also apply if the child, capable of discernment, voluntarily rejects contact with the other parent or if the latter is consistently absent due to work or health issues.

According to Article 337 bis of the Italian Civil Code, any decisions concerning the child’s welfare must involve hearing the child, even if under twelve, if capable of discernment. The hearing aims to uphold the child’s right to be informed, heard, and to express their needs in legal proceedings affecting them. Failure to hear the child requires the judge to provide a detailed rationale; not doing so violates due process rights. During hearings, minors are supported by child psychology experts.