In my professional experience, I have assisted S., the mother of a minor, L., who found herself in a situation that is unfortunately very common in separations: the father, M., did not in any way comply with the visitation schedule set by the Court. Although joint custody had been ordered, with the child primarily residing with the mother, and a precise contact arrangement had been established — alternating weekends and midweek visits — the former spouse systematically made himself unavailable, failed to show up for appointments and, in practice, withdrew from his relationship with the child.
Separation does not affect parental duties
We immediately clarified one fundamental point: separation puts an end to marital duties, but in no way affects parental duties, which remain intact and binding. From a legal standpoint, however, visitation rights are classified as a faculty and not as an enforceable obligation. This means that a parent cannot be compelled to see their child against their will, nor does the failure to exercise such a right automatically amount to a criminal offence.
Art. 709-ter Italian Civil Procedure Code and its sanctioning function
This does not mean, however, that the conduct is without consequences. In S.'s case, we acted relying on article 709-ter of the Italian Civil Procedure Code, which allows the judge to intervene when one of the parents breaches or fails to comply with the orders relating to the children. The Italian Supreme Court has clarified that these measures may also have a sanctioning function, and not merely a compensatory one, especially when the parent's conduct is repeated and prejudicial to the minor.
The petition and the outcome of the case
We therefore filed a petition reporting the father's non-compliance to the Court, carefully documenting the missed visits and his lack of interest in the child. The judge, having assessed the situation, recognised the seriousness of the conduct and ordered a modification of the separation conditions, intervening also at the financial level.
In particular, an increase in the maintenance allowance was obtained, precisely because the mother was shouldering on her own — not only financially but also organisationally and emotionally — the entire management of the minor. This is a crucial point: failure to maintain contact does not remain neutral, but directly affects the balance established by the Court.
Conclusions
The case shows that, although it is not possible to compel a parent to exercise their visitation rights, there are concrete tools to protect the residential parent and, above all, the best interests of the minor. Acting promptly makes it possible not only to bring the real situation before the judge, but also to obtain a rebalancing of the conditions, preventing the burden of parenthood from falling entirely on one party.