Cassation

Children, super-exclusive custody of one parent only in exceptional cases

Conflict is not enough, nor is the daughter's rejection of meetings with her wealthy father, seen only as a 'cash machine'.

by Patrizia Maciocchi

11 September 2025

3' min read

Key points

The father seen as a 'donor'
Mother's ostracism
A shove to the institute

3' min read

Super-exclusive custody of the child to a single parent should only be chosen in exceptional cases. To affirm this measure, created by case law and not anchored in a rule, a rigorous investigation of the child's i interest in being cared for by both parents is required. The decision to cut off one of the two, even from the choices in the child's best interest - as is the case with super-exclusive custody - may therefore only be taken if the non-custodial parent has such serious conduct, which must be rigorously demonstrated, as to impair his or her development.

The Italian Supreme Court, in upholding the appeal of a father, who was in fact excluded from the life of his daughter whom he had with his ex-partner, denies that conflict between the exes, the daughter's refusal to meet him or geographical distance are sufficient for super-exclusive custody. The Supreme Court thus pronounces a principle of law that relegates to the exception, the possibility for judges to apply an 'institution' that drastically reduces the right to bigiggenitoriality.

The father seen as a 'donor'

It had been a wealthy father living in the USA, where he had been left alone once his relationship with his ex-partner had ended and he had returned to Italy with the child. Both the court and the Court of Appeal had shared the decision of super-exclusive custody in favour of the mother. For the man there had been, in the second instance, a cut in the maintenance allowance that had gone from EUR 6,500 per month, established in the first instance, to EUR 4,300. For the rest, both judges had agreed that the child's interest was to leave all the choices concerning her to her mother.

The father was left with the onus of supervising the upbringing and education and the power to apply to the judge if, in his opinion, situations or decisions were prejudicial to the child. Also confirmed is the exercise of visitation rights remotely and, if present, after consultation with the territorial services. And, of course, it remained the father's duty to guarantee ahigh standard of living.

Mother's ostracism

This, in spite of the fact that the court-appointed expert witness had noted that the daughter's refusal to meet her father was the result of an adherence to the mother's representation of the paternal role "as a simple donor, and that is why the child, because of the deep bond of loyalty with her mother, calls him nothing". For the Ctu a way to please the mother 'and to respond to a relational style characterised by a very strong bond and dependence on a narcissistic basis'.

In addition, there was the mother's attempt to credit the new partner as the father. The woman's version was different, according to which her ex had 'not played any educational role towards the minor daughter, had not taken responsibility and had behaved prejudicially, in addition to not having shown any intention of dating her daughter but only of meeting her'. Finally, the extreme conflictuality and the lack of interest in a confrontation with the mother led to the conclusion that super-exclusive custody was appropriate for the peculiarity of this case. A reading to which the judges on the merits had adhered.

A shoulder to the institute

In fact, according to the territorial court, shared custody entailed "dangerous moments of empasse and decision impasse due to the conflict and objective communication difficulties between the parents, so that it was necessary to maintain the condition of entrusting the mother exclusively with all decisions of major interest for the daughter". All this, ignoring the father's reasons, which, documents in hand, had demonstrated the ostracism of the former also in court.

However, the father wins the last battle. The Supreme Court of Cassation gives, in fact, a blow to the super-exclusive custody considered a extrema ratio. For the judges of legitimacy, it is in fact a jurisprudential creation, "a category whose contours are not predetermined by the rule even as a general clause. This, on the one hand, recommends a truly residual use of it,' reads the judgment, 'since what is at stake is the limitation of a fundamental and inviolable right of both the child and the parent, namely the right to bigenitoriality. Strict checks are therefore needed to exclude from parenting the mother or the father. 'prejudicial conduct of no small entity' must be proven.