The child's rejection is not enough to exclude the relationship with the “bad” parent

Abstract 

When a child's rejection of a parent results from complex factors and not from seriously harmful conduct, the judge must take measures to restore the parent-child relationship, including therapeutic interventions involving the whole family.  (Civil Court, 27 January 2026, no. 1857)

Case summary

This case concerns a parent-child conflict following the breakdown of the parents’ marriage. After the separation, the Court of Busto Arsizio ordered joint custody of the children and arranged for them to live alternately with each parent on alternate weeks.

However, the situation changed when the mother left the family home and moved in with the babysitter, with whom she began a romantic relationship. This caused psychological distress to the children, resulting in their rejection of their mother. Following an appeal by the father, the Juvenile Court ruled that the children should be placed in the care of the local authority and live with their father.

The mother appealed against the ruling to the Court of Appeal, which is partially amended. The judges in the second instance argued that while it is true that the children refuse to see their mother and describe the maternal environment as characterized by 'punishment and abuse' at the hands of their mother and her partner, it is equally true that the father has failed to distance himself from the children's narrative of their mother's 'cruelty' and has instead tried to trace the deep-rooted reasons for his children's distress back to the pain of their parents' separation.

Further findings in the proceedings showed that the basis for the children's rejection of their mother was precisely the pain of losing her following their parents' separation.

Therefore, the Court of Appeal recognized the need to rebuild the relationship between the mother and her children in order to prevent their current state of suffering from developing into disorders that could hinder their peaceful development.

For this reason, and without prejudice to the children's custody by the municipality, the court ordered the initiation of family therapy with the participation of both parents. This therapy is aimed at restoring the children's relationship with their mother.

The Court of Cassation

The father appealed to the Court of Cassation, first arguing that the Court of Appeal had failed to hear the children for no reason.

However, the Supreme Court rejected the grounds for appeal, arguing that while the judge has the power to order that children under the age of twelve be heard, they are not obliged to do so.

Therefore, if they do not, they are not required to justify the omission unless there has been a request from the parties involved. Moreover, in this case, the special guardian — whose role is precisely to defend the best interests of the children — considered it unnecessary to hear the children, as this could potentially cause them emotional harm. This is because they had already been heard by professionals, social services and psychologists.

Furthermore, the father complains that the Court of Appeal failed to apply the right to shared parenting in relation to the actual needs of the specific case, instead considering that the children's relationship with their mother automatically coincided with their best interests in an a priori and uncritical manner.

This ground for appeal is also rejected. According to the Supreme Court, the balance between joint parenting and the best interests of the child in the present case must be resolved by taking initiatives to preserve the family unit and overcome critical issues regarding the mother, with the assistance of social services and specialized professionals if necessary.

Observations

In the present ruling, the Court of Cassation sets out two important principles regarding how judges should assess opinions expressed by minors.

As regards hearing minors in court, this is provided for in Article 315-bis of the Civil Code as a right exercised by a discerning child to freely express their opinion on all matters affecting their life, not as an investigative measure. However, this right must be assessed in light of the best interests of the child: if the hearing is contrary to the interests of the child, or manifestly superfluous, the judge may decide not to proceed.

Furthermore, a child's refusal to have a relationship with one of their parents, unless there is seriously prejudicial conduct on the part of the father or mother, is not sufficient to exclude joint parenting. This must also be guaranteed through the assistance of social services and family therapists.

In other words, the Court argues that, in cases of parent–child conflict, both expansive and reductive automatic responses must be avoided (e.g. forced reunification or exclusion of a parent on the basis of the child's refusal alone), with the ultimate aim of restoring the relationship that forms the basis of the right to parenthood.