My ex won't let me move abroad with my child: what can I do?

A parent’s decision to move abroad with their child is a matter of significant legal importance. The law prioritises the child’s right to maintain a stable and continuous relationship with both parents, a principle known as “biparentalism” (bigenitorialità). Consequently, a unilateral decision to relocate a child’s residence, especially to another country, is not permitted if the other parent with parental responsibility disagrees. The matter must be resolved through a judicial decision that exclusively considers the child’s best interest.

WHAT IS THE GOVERNING PRINCIPLE?

The choice of a child’s habitual residence is considered a decision of “major interest” for their life. Under Italian law, these decisions must be made jointly by both parents.

• Mutual Agreement is Required: Article 337-ter of the Italian Civil Code explicitly states that decisions concerning the child’s education, health, and habitual residence must be made by mutual agreement. This rule is a cornerstone of shared parental responsibility.
• Applies Even with Exclusive Custody: This principle of joint decision-making on major issues generally applies even if one parent has exclusive custody. The non-custodial parent retains the right and duty to be involved in such fundamental choices, unless a judge has granted a specific form of “super-exclusive” custody that concentrates all decision-making power in one parent.
• Unilateral Decisions are Not Permitted: A parent cannot unilaterally decide to move the child’s residence to another city or, especially, to another country. Such an action would violate the other parent’s rights and, more importantly, the child’s right to a balanced relationship with both parents.

WHAT CAN I DO IF MY EX DOES NOT CONSENT?

If you and the other parent cannot reach an agreement, the only legally valid path is to seek authorisation from the court.

1. File a Petition with the Court: The parent wishing to relocate must file a petition with the competent court, asking the judge to authorise the transfer of the child’s residence. In case of disagreement, the decision is referred to the judge.
2. The Judge’s Balancing Act: The judge’s decision will be based on a careful balancing of competing interests. On one hand, there is the parent’s constitutional right to freedom of movement. On the other hand, and with greater weight, there is the child’s paramount interest in maintaining stability and a meaningful, continuous relationship with the non-moving parent.
3. The Best Interest of the Child: The court’s final decision will be guided exclusively by the “best interest of the child”. The judge will not simply ratify the parent’s desire to move but will conduct a thorough analysis to determine if the relocation genuinely benefits the child.

WHAT DOES THE COURT EVALUATE?

To authorise a relocation against the will of one parent, the judge must be convinced that the move is in the child’s best interest. The court will conduct a prognostic judgment, evaluating several concrete factors, including:

• The Reasons for the Move.
• The Impact on the Child’s Relationship with the Non-Moving Parent.

• The Child’s Stability and Environment.
• The Child’s Age and Wishes.
• The Willingness of the Non-Moving Parent.

WHAT ARE THE RISKS OF MOVING WITHOUT CONSENT?

Moving a child abroad without the other parent’s consent or a court order is a serious violation of the law and carries severe consequences. A unilateral move is considered a grave breach of parental duties, and the judge can impose sanctions. If you move abroad with your child without your partner’s agreement, you need to know that they can initiate legal proceedings for the child’s immediate return to their country of habitual residence.