The hearing of the child in family law proceedings

In delicate situations of separation and divorce, the protection of the well-being and interests of the child is of fundamental importance, the hearing of the child is a part of it. Italian law recognizes the right of the child to be heard in all matters and proceedings concerning them. This principle is based on Article 315 bis, paragraph 3, of the Civil Code. Article 473 bis.4 of the Code of Civil Procedure establishes that the child, from the age of twelve or even at a younger age if capable of discernment, shall be heard by the judge in proceedings concerning measures that affect them.

The hearing is not a formal and sterile act but must take place in an environment of privacy and tranquility, always ensuring the child’s psychological well-being. The judge, assisted by experts and auxiliary personnel, is responsible for conducting the hearing. The child’s hearing must be audiovisually recorded or, if this is not possible, a detailed report must be prepared.

The process of hearing requires careful preparation. Before proceeding, the topics to be addressed in the hearing must be indicated to the parents, those exercising parental responsibility, their respective attorneys, and the special guardian. They may propose additional topics and issues for further discussion. The judge must also inform the child about the nature of the proceeding and the effects of the hearing, ensuring that the child is aware of everything that will happen.

Article 473 bis.6 of the Code of Civil Procedure provides that in cases where the child refuses to meet one or both parents, the judge has a duty to proceed with the hearing without delay, seeking to understand the reasons for the refusal and, if necessary, expedite the procedural deadlines. The same procedure is followed when behaviors of a parent are reported that may hinder the maintenance of a balanced and continuous relationship between the child and the other parent, or the preservation of significant relationships with grandparents, both direct and collateral, as well as with relatives from each parental branch.

Italian law emphasizes the importance of listening to the child, taking into account their opinions relative to their age and level of maturity. However, the judge has the discretion not to proceed with the hearing, adequately justifying the decision, if it is contrary to the child’s best interests, in cases of physical or psychological impossibility of the child, or if the child expresses a wish not to be heard.

In conclusion, the hearing of the child in cases of separation and divorce is, in some cases, essential to ensure their well-being and protect their primary interests in decisions concerning them. Italian law has implemented a series of rules and procedures aimed at ensuring that this right is respected even within the context of family proceedings.

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