International separation and divorce: the rules on custody of minors


In addition to allowing couples to choose the law applicable to their divorce or separation, the international law establishes the rules that mixed couples must follow for the custody of minors.

In the event of divorce or separation, it is important to determine whether the children will live with only one parent or with both, in alternating periods. In the absence of an agreement between former spouses with different nationalities and residency in different countries, international law regulates the procedures of assignment in the primary interest of the welfare of the minor.

The criteria of competence of the judge and the modalities of shared custody are sanctioned in the Hague Convention, which establishes that the court competent for the custody of minors is that of the country in which the child is permanently and continuously resident. In the case of child refugees, or if it is not possible to establish the habitual residence of the child, the jurisdiction will be of the judge of the state in which the minor is because of his status.

However, there are exceptions.

In particularly complex cases, the competent court may appeal to the authority of another one to more effectively evaluate the child’s interests, requesting the adoption of measures relating to the child or inviting the parents to promote the judgment before this authority. This is possible only if the judge operates in a state where the child is a citizen or in which the child’s property is located, or if he is competent to rule on the separation or divorce of the minor’s parents, or if he belongs to a state which presents a close relationship with the minor subject.


Custody of minors in the European Community


In the European Community, the subject of parental responsibility and custody is governed by Regulation (EC) no. 2201/2003, which provides for both the right of the parent to settle in the country of residence of the minor child, and that of bringing the child to a country other than that of residence for short periods. The regulation identifies the court responsible for the custody of minors in the judicial authority of the state in which the minor has the habitual residence at the time of application for foster care.

Also in this case, exceptions are foreseen.

First of all, the matters pertaining to parental responsibility, if connected to applications for divorce, separation or annulment of marriage, can be decided by the court competent to rule on the application for divorce, separation or cancellation. This is possible if at least one of the spouses exercises parental authority over the minor and if there is an agreement between spouses to guarantee the best interests of the minor.

In order to protect the interests of the child, it is possible to contact the judge of a member state with whom the child has a close relationship, or which is the permanent place of residence of one of the parents, if both expressly accept the competence of another judge.

In the case of minor refugees or displaced due to riots in their countries of origin, jurisdiction is entrusted to the judge of the state in which they are located.

The regulation also establishes rules to settle cases in which the child is unlawfully transferred or detained. Courts in the EU country in which the child habitually lived just before the abduction continue to be competent until the child is primarily resident in another EU country.


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Divorces, parental responsibilities, and custody of minors are highly sensitive issues, from a legal and personal point of view; when mixed couples separate, the complexity increases exponentially.


Our lawyers have extensive experience in international law and assist Italian and foreign clients on a daily basis.
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Notice: this article is intended to be a general practical introductory explanation and does not represent formal legal advice. Palmigiano Law Firm accepts no liability or responsibility for any statement made.