As is known by now to my twenty-five readers, the undersigned prefers starting from the maxim. In the case we are dealing with, the maxim of reference is the recent ruling by the Supreme Court of Cassation n. 18817/15 of 23.09.2005, which stated the principle of law according to which the Law Court’s decision with regard to foster care of minor after his/her parents’ separation shouldn’t be considered under no circumstances as definitive and immutable. Indeed, if new circumstances arise, such as to let consider more suitable to child’s wellness that he/ she should live mostly with the other parent, the judge can provide lawfully an inversion of placement. This can happen, for example, when the foster parent of minor, having started a new cohabitation, is expecting a baby from such relationship.
To better understand the conclusions to which the Supreme Court arrives, it is useful to make reference to this particular case, certainly not remote from a reality that shows more and more frequently the birth of new family units following the breaking off of previous relationships.
In this particular case, the judge of divorce, still confirming the regime of shared foster of a minor to both parents, provided the location to his/her father’s house following the relocation of his ex- consort to another town, by the charging social services with the coordination of the management and the planning of child’s visits by his/her mother. The woman appealed against the judge’s decision of first aid, by asking to live with her child again, considering that the man was expecting a baby from his new partner with whom he had started cohabitation; such complaint was allowed by the appeal Judges.
The court of Cassation upheld such ruling, by reaching the thesis according to that, in a period of particular importance for the minor, such as that of the beginning of scholastic attendance, it constituted a factor of greater serenity for the last-named the stable permanence to the mother’s family; in such unit, indeed, the minor would have constituted “ the only centre of attentions”, while, on the other side, inside the paternal family unit, the attentions would be lavished inevitably on the unborn child. And indeed, even if two children born of a previous marriage were part of maternal unit too, they had reached though the legal age, by not being, therefore, in need of all the attentions that should be rendered to a minor that undertakes the education path.
The ruling passed by the judges of the Court centres its own grounds on the comparison among the features of the two familiar units (the maternal one, made up of two other children in legal age by now, and the paternal one, expecting another baby ) by assigning a decisive role to the bigger attentions of which the minor could have constituted object in the maternal background, in an extremely delicate moment for his/her growth.
Moreover, the ruling clarifies that the foster parent should be individualized on the basis of a judgment with regard to his/her own capacity of raising and bringing up the child (and in these words we can grasp a clear reference to art. 30 Const. ) in the new situation established after the end of the marriage. Such judgment should be formulated on the basis of actual features, such as:
- The concrete operating method of the duties carried out by each parent;
- The relative capacity of attachment, attention, comprehension, education and of willingness to have a constant relationship with the child;
- The parent’s subjectivity;
- His/ her lifestyle;
- The socio-familiar background that he/she can offer to the minor.
Lastly, the Ermines judges [1] - by quoting some previous judgments (ex plurimis Cass. sent. n. 14840/06 and n. 6312/99 )- remind that, in the adoption of regulation concerning minors, the magistrate has to consider the exclusive moral and material interest of the children that imposes to privilege, among the probable practicable solutions, that that appears more suitable to reduce to the utmost the damages that derive by the disruption of the familiar unit and to guarantee the best development of child’s subjectivity, by ruling a principle in the field of foster care of minor, useful for the future too.
Notes and list of references
[1] Owing to their particular clothing (especially used in formal occasion such as the inauguration of the legal year or some assemblies of the Magistrates' Governing Council) that consists of red gown with hem of ermine's fur and sometimes white gloves, these judges are known as the "Ermines". (Source: https://it.wikipedia.org/wiki/Corte suprema di Cassazione )