What Are The Differences Between Exclusive andSuper-Exclusive Custody?

Exclusive and super-exclusive custody: the prerequisites and the role reserved for listening to the minor

The court grants sole custody when it believes that joint custody does not protect the minor, and it does so based on assessable and concrete circumstances.

Exclusive custody is granted when the parent does not provide care and education for the minor and does not meet their needs, when the parent has been convicted of serious crimes, when the parent is dependent on alcohol and/or drugs, when the parent has exercised or exercises any type of violence, whether physical or verbal, in the presence of the other spouse or in the presence and to the detriment of the minor, and finally, when the parent systematically fails to fulfill the obligation to pay child support.

Exclusive custody does not automatically result in the suspension of parental responsibility but only determines a limitation. The non-custodial parent still has the right to make, jointly with the other parent, most decisions regarding the child’s health and education; Moreover, the non-custodial parent retains the right to visitation and the legal and moral duty to support the child.

Super exclusive custody is granted in the most serious cases, when the parent is shown to be completely inadequate to fulfill their role.

The “super custodial” parent will be the only one to decide on the child’s health and education as well as on all the most important decisions for their life, without ever having to involve the other parent. However, the other parent retains parental responsibility towards the child and is obligated to pay child support.
This type of custody is granted when the non-custodial parent is, for example, violent and therefore unfit for the role of a parent. Super exclusive custody can also be requested when the child, capable of discernment, spontaneously and consciously refuses any type of relationship and contact with the other parent, or in the case where the latter lives permanently far away for work reasons, showing no interest in the minor, or is in a precarious state of health.

Article 337 bis of the Civil Code provides that, when measures are taken concerning the interest of the minor, such as their cohabitation with one of the parents, the minor’s hearing is always ordered, even if under twelve years old and even at a younger age, if capable of discernment. The purpose of the hearing, in fact, pertains to the minor’s right to be informed, listened to, and to be able, in the clearest possible manner, to present their considerations and needs to the Judge within the proceedings concerning them.

It can be stated that in the context of custody or visitation, the minor has conflicting and objectively different interests from those of the parents; for this reason, they must be considered a substantial party and therefore have the right to present their reasons and any fears and concerns during the process and in close contact with the judicial body.

It follows that, in the event of the minor not being heard, the Judge is obliged to provide a detailed justification; the failure to listen to the minor without even a justification for the omission of the minor’s hearing constitutes a violation of the adversarial principle and the principles of due process constitutionally guaranteed. During the hearing, the minor is accompanied and listened to by experts in child psychology.

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