Non basta una sentenza penale, neppure passata in giudicato e nonostante sia relativa a reati commessi nel contesto della separazione, a giustificare l'affidamento esclusivo a uno solo dei genitori. Alla regola generale dell'affidamento condiviso, ha stabilito ieri la Sesta sezione civile della Cassazione (24841/10), si può in fact waived only if its application is "prejudicial to the interests of the child."
The case brought before the courts of the legality of Puglia was about a young mother accused of slander against the unmarried, the father of her children and later sentenced at first instance, the woman had complained of sexual abuse on the partner's daughter three years, while knowing innocent.
On the basis of that ruling the juvenile court had given two sons to her father and mother to the child, while the Court of Appeal had later reinstated both parents in the parental responsibility of three children, but the children entrusted exclusively to the father. According to the Sixth Civil, however, the court of appeal in that way was the foundation of its decision made a while off, not yet crystallized into a definitive measure, but especially without showing that "these events make in relation to current events, self-evident the inability of the mother to perform properly the maternal role and responsibly. " Instead the court at the time to derogate from the standard joint custody, it must give reasons "not only positively on the ability of the custodial parent, but also in negative educational unfitness or manifest failure of the other parent," as provides for a Court's constant (16593/2008 and 26587/2009). Therefore the events that occurred tra i due ex conviventi, «anche se strettamente correlate al loro ruolo di genitori e ai loro rapporti con i figli» non sono sufficienti a sorreggere l'affidamento esclusivo, tantomeno a sostenere, come fa «apoditticamente» la corte di merito «il grave pregiudizio che la piccola ha subito e subirebbe rimanendo affidata alla madre».
(Fonte Il Sole 24ore )
The case brought before the courts of the legality of Puglia was about a young mother accused of slander against the unmarried, the father of her children and later sentenced at first instance, the woman had complained of sexual abuse on the partner's daughter three years, while knowing innocent.
On the basis of that ruling the juvenile court had given two sons to her father and mother to the child, while the Court of Appeal had later reinstated both parents in the parental responsibility of three children, but the children entrusted exclusively to the father. According to the Sixth Civil, however, the court of appeal in that way was the foundation of its decision made a while off, not yet crystallized into a definitive measure, but especially without showing that "these events make in relation to current events, self-evident the inability of the mother to perform properly the maternal role and responsibly. " Instead the court at the time to derogate from the standard joint custody, it must give reasons "not only positively on the ability of the custodial parent, but also in negative educational unfitness or manifest failure of the other parent," as provides for a Court's constant (16593/2008 and 26587/2009). Therefore the events that occurred tra i due ex conviventi, «anche se strettamente correlate al loro ruolo di genitori e ai loro rapporti con i figli» non sono sufficienti a sorreggere l'affidamento esclusivo, tantomeno a sostenere, come fa «apoditticamente» la corte di merito «il grave pregiudizio che la piccola ha subito e subirebbe rimanendo affidata alla madre».
(Fonte Il Sole 24ore )
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