(July 1, 2013) Law 219 of December 10, 2012 (LEGGE 10 dicembre 2012, n. 219, NORMATTIVA), which entered into effect on December 17, 2012, amended the legal status of children born out of wedlock (“natural” children). The Law overhauled numerous provisions of the Italian Civil Code and its implementing regulations, in order to establish a new legal regime of egalitarian treatment of legitimate and natural children.
Law 219 inserts the phrase “[a]ll children have the same juridical status” in the Civil Code (Civil Code, art. 315 [in Italian], ALTALEX, http://www.altalex.com/index.php?idnot=34794), and adds that “the expressions ‘legitimate children’ and ‘natural children’ must be replaced by the word ‘children’ any time they appear in the Civil Code” (Law 219, art. 1(11)).
In particular, the new Law prohibits discrimination of any kind between legitimate and natural children by defining the “parental link” as that existing between persons who descend from the same ancestors, whether the filiation originates as a consequence of marriage or outside of marriage, and whether it is biological or adoptive (Civil Code, art. 74).
The parental link does not exist, however, with respect to the adoption of persons older than the age of majority (age 18, according to Law 39 of March 8, 1975 (NORMATTIVA; Civil Code, arts. 291 et ss). Children born to persons who are themselves linked in the direct parentalline or in the second degree of the collateral line may be recognized as parents with prior judicial authorization, taking into account the best interests of the child and the need to avoid prejudice against the child. (Civil Code, art. 251).
The Law also contains significant amendments concerning the judicial procedure for the recognition of children. Juvenile courts may force the recognition by a parent of a minor (i<?d. art. 251). A request for the judicial declaration of natural paternity or maternity must name the presumptive father or mother, or in their absence their heirs or, if there are no heirs, the judicially appointed guardian (id. art. 276). The decision establishing parenthood is issued in all cases, whether or not the parent is unwilling.The filiation of children conceived and/or born outside marriage may be judicially established by “any suitable” evidentiary means(Law 219, art. 2). The judgment may take the place of consent when that is missing (Civil Code, art. 250, ¶ 4). The recognition affects the parents involved and their relatives (Id. art. 258). The purpose of this amendment referring to relatives appears to be to create a right for grandparents to have a meaningful relation with their minor grandchildren.
The new Law also reinforces the reciprocal rights and duties between parents and children. It establishes that children have the right to be maintained, educated, instructed, and morally assisted by their parents – with due respect for their abilities, natural inclinations, and aspirations –, to be raised in a family, and to maintain a meaningful relationship with their parents. The child, in turn, must respect his or her parents and contribute, according to ability and income, to the maintenance of the family with which he or she lives (id. art. 315-bis).
In addition, the Law amended Royal Decree 318 of March 30, 1942 (NORMATTIVA) to allow courts to force a presumptive parent or parents to provide in personam or in rem guarantees when there is a danger that they might avoid compliance with their legal obligations concerning the child (Royal Decree 318, art. 38). The Law states that the name of the child must correspond to his or her gender and may be composed of one or more first names, whether or not hyphenated, with a maximum of three names (Presidential Decree 396, Nov. 3, 2000, art. 35, as amended by Law 219, NORMATTIVA).
The new Law also changes the legal regime covering the status of children born to parents who are married to someone other than the other biological parent. In effect, a child born out of wedlock may be recognized, jointly or separately, by a father or mother who is already married to another person at the moment of conception. The Law also states that a parent as young as 14 years of age may recognize his or her own child; the previous limit had been 16 years of age (Civil Code, art. 250, ¶¶ 2 & 3). In addition, parents may not deny consent to a minor child’s marriage when marriage would be in the child’s best interest. In a case of refusal of consent by just one parent, the consenting parent may petition the juvenile court, which must summon the other parent to express his or her view. Whether or not the non-consenting parent appears in court, the court enters a judgment, taking into consideration all the appropriate information and after hearing from the child in question, if that child has reached either the age of 12 or is considered by the court to possess the maturity, reason, or mental ability to recall and narrate events such that the court is convinced the narration is worthy of trust (id. art. 315-bis).
Finally, within 12 months of the date it comes into effect, Law 219 accords the government a broad power to issue legislative decrees reviewing the existing legislation in the area of filiation, in order to eliminate all differences between legitimate, natural, and adoptive children (Law 219, art. 2).