When parental authority is lost
Authority it is the obligation for parents to maintain, educate and educate their offspring in full respect of their personality. Parents represent minor children in all civil acts and administer their assets. By law, the minor remains unable to act until the age of eighteen therefore the parents must answer until that moment in the name of the children. This power is defined parental authority (Article 316 of the civil code).
This means that the parents, up to the age of the children, are legal representatives and as such they possess a series of rights but above all obligations. But what if the conduct of a parent causes serious harm to the child?
Over the years, the institution of parental responsibility has undergone interpretative evolutions that have redesigned its contours, reaching today to indicate that set of rights and duties, attributed to parents by law to protect non-emancipated minor offspring, aimed at promoting healthy and harmonious psycho-physical growth and at implementing the duties of education, training and maintenance, sanctioned both at the constitutional and codicistic level. The regulatory references to be taken into consideration are the following:
- The art. 30 of the Constitution expresses itself in this sense:
it is the duty and right of parents to support, educate and educate their children, even if born out of wedlock
As is clear, this rule grants parents a perfect subjective right, identifying in their heads an active interest in education, maintenance and education.
- Art. 147 of the Civil Code states that:
Marriage imposes on both spouses the obligation to maintain, instruct, educate and morally assist their children, respecting their abilities, natural inclinations and aspirations ...
This article, making a specification with respect to the constitutional provision, identifies what they are the limits within which parental authority can be exercised, recognizing them in respect of the abilities, natural inclination and aspirations of their children.Read also: Single mother and minor not recognized by the father: what rights?
Loss of parental responsibility and sole custody
But what happens if the parent fails to fulfill his or her duties as indicated by the law? What happens if there are facts that are prejudicial to the minor? In the event that a parent abandons all interest in the minor or carries out serious behavior towards the minor himself, said behavior can only be considered as detrimental to the psychological integrity of the offspring, because it is marked by absolute abandonment and because it has, in any case, created a discomfort and a malaise corresponding to the renunciation of authority.
Parental responsibility is not an absolute personal freedom of the mother or father, but a right and duty to take care of children and protect their personality development. It is therefore functional to the interest of minor children and, for this reason, fails when it harms them rather than protects them. Once invested with the task of judging the request for revocation of parental responsibility, the judge must therefore assess whether the parent's conduct is actually detrimental to the child and what consequences the revocation of parental responsibility could have, again in the interest of the latter.
Reasons for forfeiture
The judge can pronounce the forfeiture of parental responsibility (art.330) when the parent:
- is violent or abuses children (abuse in the family, violence, injury, etc.).
- violates or neglects the duties inherent to it, or abuses the relative powers with serious prejudice for the child;
- it does not take into account the abilities, natural inclinations or aspirations of the children also for the purposes of the choices on maintenance, education or upbringing;
- abuse of the powers attributed to him by the same authority, for example, in the hypothesis of continuous humiliations, verbal violence, excessively severe punishments, etc.
The assessment of the seriousness of the parental behavior is left to the judge. When the reasons for forfeiture are particularly serious, as in the case of neglect, neglect, or mistreatment, the judge can also order the separation of the parent from the child.
How to obtain the provision of forfeiture of parental authority
L’art. 336 c.c. indicates that with an appeal, a parent (or other relatives or the public prosecutor) can request a provision for the forfeiture of parental authority against the other parent. The court, once information has been obtained, acts in a council chamber; it also disposes to listen to the minor child who has reached the age of twelve and also younger if capable of discernment. In case of urgent need, the court may adopt, even ex officio, temporary measures in the interest of the child.
Effects of the declaration of forfeiture
The forfeiture provision implies for the parent the suspension from the ownership and from the exercise of parental responsibility; despite this, he continues to be burdened with all the duties including that of maintenance whose fulfillment is not incompatible with the effects of the ruling. Although exclusive custody is a residual remedy, it also plays an extremely important role in the discipline of the crisis of cohabitation and this because the general canon expressed by the right to two-parenting is not to be understood as exclusive and mandatory.
It is clear that if the forfeiture measure is pronounced against a single parent, the exercise of parental responsibility will be the exclusive responsibility of the other parent. In the event that the forfeiture concerns both parents or the parent exercising the responsibility exclusively, it is possible to arrange for the placement of the minor outside the family, with attribution to third parties, or to public institutions, of the exercise of parental responsibility.
Duration of the forfeiture of parental authority
The forfeiture of parental authority does not apply forever: the parent can be reinstated in parental responsibility (always with the judge's provision) when the reasons for the forfeiture cease and there is no longer any danger of prejudice for the children. In conclusion, it is clear that the legislation has as its main objective that of protect the interests of the minor in the best possible way, not involving him in the marital crisis and at the same time imposing on each of the parents to assume all the responsibilities and commitments related to their role. Furthermore, it wants to spread in the community the idea that both parents have a role of fundamental importance for the growth of the children, whose responsibilities they must always share, in an equal way.