Academic journal article Italian Sociological Review

Court-Ordered Assessments of Family Resources in Family Law Proceedings: The Technical Advisor and Other Non-Juridical Professionals Compared and Contrasted

Academic journal article Italian Sociological Review

Court-Ordered Assessments of Family Resources in Family Law Proceedings: The Technical Advisor and Other Non-Juridical Professionals Compared and Contrasted

Article excerpt

Abstract

This study provides a reconstruction of the legal framework surrounding family break-up proceedings in order to observe the overlaps in the responsibilities of and relations between the social services and the court-appointed technical advisor and the technical advisor chosen by the parties.

Keywords: family proceedings; interests of the minor; parenting responsibilities.

1. The reform of shared parental responsibility and conciliation tools

From a legal viewpoint, the family, as a complex social phenomenon, shows clear signs of a shift towards the privatization of the relevant institutions and of family relations, above all due to the exoneration from the general clauses that, in different ways, sanctioned a sort of inviolable "sacredness" of the institution of the family: the family reveals its meaning as a method of protection, inasmuch as it is a summary and compendium of principles designed to protect its members in the place of the aforementioned general clauses - imbued with the language of advertising - such as "family unity" and "the interests of the family", which have now assumed a different meaning. Family relations, a field in which field the system tends to intervene ever more decisively in order to ensure a significant area of autonomy for them, have taken on a new form of functionalization compared with the theoretical framework of the 1975 reform. The most interesting part of this functionalization is the creation and deliberate promotion of the protection of minors and their right not only to a family, but to a family that generally meets a number of criteria for suitability. From this reflection, which helps to regenerate a judicial culture inspired by and built around the protection of minors, we cannot but note the sharp increase in the numbers of families turning to the professional social services in the hope of obtaining support and advice in highly complex situations, and a greater use of expert consultations (with court-appointed and part- appointed professionals) in court proceedings.

The reform of shared parental responsibility, before introducing regulations whose content is only innovative in some ways, had the idea (and through this the merit) of engraving the prescriptive principle of shared parenting responsibilities on the system, a principle that was already in force in the context of family break-ups: as a manifestation of the right to two parents, it expresses the right of the offspring to receive care, education and upbringing from both parent figures, thereby being set as the main premise of the whole regulatory framework. The principle introduced by the new system, which has given quite significant validation to its contents, also constitutes an operative principle in a number of European contexts and is, in brief, aimed at protecting the rights of underage offspring and searching for the best way to re-arrange the family in the light of the break-up in order to maintain a situation that "resembles" as closely as possible the one experienced during the normal married life of the couple. In the light of this principle, the newly introduced regulations are designed to protect and promote the minor's real need to maintain a "balanced" and "continuous" relationship with each parent, so that the whole subject of family break-up is informed by the principle of sharing not only nominal parental responsibilities but also active parenting roles, in consequence of the offspring's right to have two parents. This is why the legal reference contained in the incipit of the regulations, which sanctions the offspring's right to "preserve significant relationships" with the ascendants and relatives from both of their parents' families, is remarkable. The stipulations of the new regulations, by introducing a principle that is widely accepted in theoretical terms but has often shown itself to be problematical in its application, identify not so much and not only the right of ascendants to exercise visiting rights regarding the offspring, but rather a general principle of protection relating to the upkeep of significant affective and social relations with their ascendants despite the termination of the parents' marriage and the assignment of custody, in order to guarantee "the affective charge the human being cannot do without at the time of his formation". …

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