Moving abroad of the separated spouse with children

In Italy, moving abroad of the separated spouse with children (figli) does not cause immediate consequences on children’s assignment (affidamento) or support (collocazione). The Italian law requires that a balanced relationship by the children with their mother (madre) and their father (padre) is guaranteed in any case. For this reason, when husband and wife are both foreigners, or one of the two got married with an Italian citizen, or their country of origin is different, it is appropriate to appoint an Italian qualified lawyer specialized in family law who could examine the case to understand within which limits it could be allowed a move and also for the purpose of starting the appropriate strategies.

Moving abroad pursuant to Italian law

In order to understand how the fact of moving abroad could be evaluated by an Italian Court we may make a concrete example, imagining a foreigner father who lives in Italy with his two children (the father and the mother of the children already got a separation – separazione). The children have been placed at his house but assigned as a shared custody also with their mother, who lives in the same neighbourhood with another man. The relationship between parents remains quite good and their vicinity eases mother’s life, who manages to see the children almost daily. The father is willing to come back to his country of origin, but before making a decision, which inevitably would involve also the children, he talks with the wife who clearly disapproves this decision of moving abroad. She does not want that the children follow the father, because she is afraid of not being able to see them as often as she currently does.

When there is no agreement (accordo) between father and mother, the parent – who would like to change his/her residency or would like to move abroad – should ask (with the legal advice by an Italian qualified lawyer specialized in family law) for a decision by the competent Italian Court, that should evaluate if the change could have an impact on the right of visiting the children of the other parents, but above all on the life of the children themselves.

The evaluations of the Court about moving abroad

In itself, the moving abroad of the parent with whom the children regularly live do not entail that they must go to live with the other parent. Any situation must be evaluated on a case-by-case basis.

Firstly, the Court shall evaluate if this transfer could unsettle the minor or create to them any inconvenience. Changing city or even country means having to leave the environment where the children have grown up as well as leaving relatives, friends and the school in order to live in a different place, often unknown where there is a different culture and language.

The Court could decide to hear the minors with the specific purpose of taking into consideration their positions and their reactions about the idea of moving abroad.

The Court shall also evaluate the possibility that the moving abroad of the children could threaten meaningfully their relationship with the other spouse, who could have greater difficulties to spend some time with the children as well as to participate to their daily life and to be involved concerning the important decisions for their life.

In a case like the one we mentioned above, the father could manage to maintain the placement of the children if these ones would agree about moving abroad and if it would be possible to modify the mother’s right to visit them, in order to meet halfway concerning her needs and children’s ones, also by means of modern technologies of online communication (video-chat, video-call, message chat, and so on).

Marzorati Law Firm is specialised in family law, also internationally, and its lawyers usually deal with separations, divorces, child support and family support. To advise all its clients all over Italy and worldwide, Marzorati Law Firm has also developed a network, made also of at least a barrister/solicitor, an attorney-at-law, an abogado, and an avocat à la cour, all qualified in their respective country of practice.