29 Maggio 2020

CONTRIBUTI – Avv. Cinzia Calabrese e Avv. Gloria Musumeci Visiting rights during Coronavirus

Italy is one of the most affected countries by the spread of Coronavirus. The measures adopted by the Italian Government to fight the Covid-19 pandemic have significantly altered life habits of all citizens and have also had a strong impact on family relationships, especially as regards visiting rights. The question was, in particular, whether the restrictions imposed by the Government should also be extended to the movements of a parent to reach their children living with the other parent. The Government, on April 1, 2020, clarified that “travelling to reach minor children with the other parent or with their carer, or taking them away, are also permitted from one city to another. These movements must in any case take place by the shortest route and in compliance with all health requirements (people in quarantine, infected, immunosuppressed, etc.), as well as in the manner provided by the judge in the separation or divorce decree or, in absence of such provisions, as agreed between parents”. Moreover, the self-declaration form for transfers, provided by the Ministry of Interior, indicates, among the justifying reasons for the transfers, also the one specifically relating to “custody obligations for minors”. This means that the parent with whom the child lives most of the time cannot prevent the other parent from exercising their visiting right on the basis of the provisions issued by the Government for the containment of the Covid-19 infection. The visiting time between the children and the non-cohabiting parent must take place in compliance with the rules laid down by the judge in the separation or divorce decree or, in the absence of such decree, as agreed between parents. Therefore, the agreement between parents, which must be in writing (even an exchange of e-mails is enough), can replace the judge’s ruling in all those cases where such ruling is absent (e.g. de facto separation, cessation of unmarried partnership, spouses who are waiting for separation). However, despite these rules, the case law on such matters is by no means following the same rationale. There have been, indeed, judgements regarding the children’s right to grow up with both parents which shall always prevail and which – in line with this principle – leave the parent/child visiting right unaltered; there have also been judgements stating that the right to healthcare should prevail over the children’s right to two parents. As a consequence, these rulings have suspended the visiting rights between the children and the non-cohabiting parent, deeming virtual meetings as sufficient (Skype, WhatsApp, Zoom, FaceTime and the like). Curiously enough, the Court decisions reflect the geographical location of the Court: ironically, greater rigour in the restrictions of parent/child visiting rights has been ruled by the Courts in southern Italy (an area significantly less affected by the virus than northern Italy); instead, the Courts of Milan, Brescia and La Spezia (all situated in northern Italy) have ruled in favour of the right to two parents, thus establishing the untouchability and the consequent importance of face to face interactions between parents and children. The first ruling on this matter came from the Court of Milan (on March 11,2020). Based on what was established by the Prime Ministerial Decree on March 8, 2020 n. 11, art. 1, paragraph 1, lett. a), as well as in the Government FAQ of March 10, 2020, the Judge accepted the urgent request filed by a father who demanded to exercise his visiting rights despite the provisions issued to fight the Coronavirus and therefore ordered parents (with a provision issued inaudita altera parte), to comply with the separation rules stated in the decree. Two judgements followed, both issued on March 26, 2020, one by the Court of Naples and the other by the Court of Appeal of Bari, but heading in the opposite direction with regards to the judgement issued by the Court of Milan. The Court of Naples, in consideration of the driving ban in force throughout Italy, ordered that the rules governing visiting rights shouldn’t involve the transfers of minors and that the meetings with the non-cohabiting parent should be ensured through virtual meetings, on a daily basis. The Court of Appeal of Bari decided to suspend meetings between father and son living in two different cities in order to comply with the safety measures. Moreover, according to the Court, the right/duty of parents and minor children to meet is downgraded by the prevailing right to healthcare, which in practice is represented by the travel restrictions and, for this reason, it can be replaced by video calls (see also Court of Vasto, 2.4.2020; Court of Bari, 3.4.2020). It is also worth mentioning the ruling of the Court of La Spezia that, in the wake of the ruling of the Court of Milan, clarified that the exercise of co-parenting is a constitutionally protected right both from minors’ and parents’ points of view, responding to their primary interest in maintaining a balanced and regular relationship with the non-cohabiting parent: therefore, no limitation on visiting rights. The Court of Milan’s ruling of April 7, 2020 applied the same principles: the regulations issued for the containment of the infection do not constitute an obstacle to parent-child meetings and the right to two parents, as a constitutional right, must be safeguarded, in compliance with health regulations. A framework, therefore, not quite coherent: on the contrary, two opposing orientations. The authors of this document believe that the opinions that favour and safeguard the right to two parents should prevail: in such a critical period of restrictions and limitations of individual freedom, depriving minors of a normal and regular presence of the other parent could be prejudicial to their psycho-physical well-being. It is unquestionable that, in addition to the many uncertainties and the countless questions related to the epidemic and the distortion of their habits (primarily school attendance), the loss of safety and peace of mind would be added in consideration of the stable emotional relationship that every child is entitled to have with both parents. Favouring the right to two parents does not mean sacrificing the right to healthcare: we have to observe the rules issued by the Government and let common sense be the guiding principle of the behaviour of each parent. Thus, we will protect the peace of mind and well-being of minors and, at the same time, the health of us all.