DUTIES OF CHILDREN
The child's main duty is to respect his or her parents.
If the child lives with his or her parents, he or she is obligated to contribute to the satisfaction
of family needs, based on the solidaristic principle that all members must work to achieve the
common welfare.
The extent of contribution should be made in relation to the child's substance and income.
The child's obligation to contribute does not cease upon reaching the age of majority, but
continues for as long as cohabitation with the parents continues.
The extent of the contribution is determined according to the criteria also applied for the
parents, thus also taking into account the child's ability to work. Although the law does not
provide anything in this regard, the solidaristic principle dictates that no distinction should be
made regarding the contribution of different members of the nuclear family who are
patrimonial autonomous.
PARENTAL RESPONSIBILITY.NOTION, TENURE, CONTENT, EXERCISE
Notion: parental authority is the totality of powers granted to the holder over the person and
property of the minor or unborn child, in the interest of the same, including representation in
relations with third parties.
Ownership: it usually belongs to both parents, unless there has been a cause for forfeiture of
the same (see 11.5).
Parental authority over the natural child is vested in the parent who has recognized him or
her (317 bis cod civ) or in whose regard the filiation relationship has been established.
Exercise of parental authority: under this, the parent assumes decisions with respect to the
person and property of the child and representation in the stipulation of acts.
The exercise is vested in both parents, except in the case of incapacity, remoteness or other
impediment of one parent: in this case, parental authority will be exercised by the other;
failing this, a guardian will be appointed.
The exercise of parental authority over a natural child is vested in both parents, only if they
cohabit, otherwise it is vested in the parent with whom the child cohabits or the parent who
first recognized him or her, if he or she does not cohabit with either.
The parent, who holds parental authority but does not exercise it, must supervise over the
actions of the other parent and must maintain relations with the child unless this is
prejudicial.
The powers granted parents who exercise parental authority include the power to fix the
child's abode.
In addition, they will have the power to direct the child's personal education, according to the
pattern they favor. In making these choices, parents must take into account not only their
own beliefs, but also the child's abilities, natural inclinations and aspirations, respecting the
child's personality.
The choices pertaining to the parents pass to the minor when he or she reaches the maturity
necessary to make them personally: in fact, parental authority is intended to remedy a
situation of inferiority resulting from the minor's immaturity.
The exercise of parental authority must be by mutual agreement (316 cod civ): decisions of
daily life concerning the child can be made severally, while the most important choices must
be made jointly. However, if there is an impending danger of serious harm to the child, it will
be up to the father to order the measures that are urgent and cannot be postponed.
If there is a disagreement between the parents on individual matters of particular importance,
and not urgent, each may appeal to the juvenile court, for resolution of the dispute.
The court's intervention consists of two stages:
- in the first stage, the court, after listening to the child's parents, will attempt conciliation,
suggesting the solutions that seem most helpful in the best interests of the child and the
family unit.
- if the conflict remains, the court will identify the parent who proposed the most suitable
solution
in the best interests of the child is entrusted with its implementation.
More generally, the court is vested with a general power of intervention to take those
measures that appear to be convenient in the best interests of the child: this could also order
removal from the family home.
REPRESENTATION AND ADMINISTRATION OF THE MINOR'S PROPERTY.THE LEGAL
USUFRUCT.
Administration: the parents must provide for the administration of the minor child's property
and represent him or her in court, as well as in entering into acts with third parties.
However, the law provides that some acts may be entered into personally by the minor.
Parents may perform acts of ordinary administration severally, while contracts by which
personal rights of enjoyment are granted or acquired must be entered into jointly.
For some transactions, such as alienations and collections of capital, and for all acts of
extraordinary administration, the spouses must act jointly subject to the authorization of the
guardianship judge, who will grant it only in cases of necessity or obvious utility.
Disagreement of the parents on an act they should perform jointly is resolved through the
intervention of the court in the manner provided for in Section 11.3.
If in the performance of an act a conflict of interest arises between the child and the parent,
the child will be represented only by the other parent, but if the conflict involves both parents,
the court must appoint a special curator.
However, parents exercising parental authority may not acquire the child's property, either
directly or through an interposed person.
Acts done without complying with these rules are voidable, at the instance of the parents, the
child who has come of age, his or her heirs or successors in title.
The action is time-barred within five years after the child reaches the age of majority.
Legal usufruct: Parents exercising parental authority hold, in equal shares, legal usufruct
over the child's property. They, therefore, may directly receive and make their own, like an
ordinary usufructuary, the fruits produced by these assets. On the holders, in fact, will rest
the obligations proper to the usufructuary.
Holders may be only the parents exercising parental authority: therefore, if the property is
alienated, the purchaser will validly acquire (the so-called right of sequela is missing).
Legal usufruct is constituted over all of the minor's property except for:
❖ property purchased by the child with the proceeds of his or her own labor; the proceeds
themselves
❖ The property left or given to him to take up a career, art, profession
❖ property left or given to him under the condition that the parents do not have the usufruct
of it
❖ property received by him by inheritance, legacy, gift, against the will of his parents
❖ Property from an inheritance from which the parent has been excluded due to
unworthiness.
The fruits produced are encumbered by a restriction of destination: that is, they must be used
for the needs of the entire family. This lien then also operates against creditors, in that they
cannot act enforceably for debts that they knew were incurred for purposes unrelated to
meeting the needs of the family.
The child's creditors can enforce the assets, without the legal usufruct being a limitation.
In the event that the parent moves to a new marriage, he or she must use the fruits
exclusively for the needs of the child and possibly to the original household.
Legal usufruct is unavailable, imprescriptible, and unpropritable.
Extinction of usufruct: it is extinguished
1. with the termination of the power,
2. by court order,
3. in the case of mismanagement of the child's assets by the parents (art 334 Civil Code),
4. by death of the holder of the child,
5. by perishment of property.
12.6. TERMINATION OF PARENTAL AUTHORITY AND REMOVAL FROM THE
ADMINISTRATION OF THE CHILD'S PROPERTY.
Normally, parental authority is terminated upon the child's reaching the age of majority.
Other causes of extinction are:
(a) death of the child or parents
(b) marriage of the minor child, resulting in emancipation (390 Civil Code)
(c) certain criminal convictions pronounced against the parents
(d) judicial pronouncement of forfeiture.
The latter presupposes that the parent has violated or neglected duties or abused the powers
flowing from parental authority, causing serious harm to the child or creating serious danger.
In some circumstances, the court, in addition to pronouncing the forfeiture of parental
authority, may also order the removal of the child from the family home and the custody of
another person. The cause of termination may also affect only one parent: in this case the
powers are concentrated in the hands of the other. In less serious cases, the court will simply
pronounce the temporary suspension of the parent from parental authority or take measures
or dictate prescriptions, which the parents must observe in the exercise of parental authority.
The measures indicated are ordered by the juvenile court at the initiative of the other parent,
relatives or the prosecutor.
Different from forfeiture is the removal of the parent from the administration of the child's
property.
This, in fact, does not involve the loss of decision-making powers over the person of the
child, but only the loss of management of his or her assets and representation. It is adopted
in the case of maladministration. These assets then are administered by the other parent. In
less serious cases, the court will simply order appropriate measures to ensure the proper
administration of the estate itself.
EFFECTS ARISING FROM NATURAL FILIATION
The effects resulting from natural filiation basically coincide with those of legitimate filiation.
Special discipline is provided for:
☻ for the acquisition of the surname of the natural parent by the child;
☻ for the latter's custody and eventual entry into the legitimate family of his or her own
parent
natural parent.
A) acquisition of surname: the natural child acquires the father's surname if he was
recognized simultaneously by both parents or by the father alone; he acquires, on the other
hand, the mother's surname if she alone recognized him.
If after the mother's recognition, the father's recognition intervenes, the child may decide to
substitute or add the father's surname to the mother's surname. This rule does not apply if
the first recognition is the paternal one, because it is intended to make the position of the
natural child as close as possible to the position of the legitimate child. The decision rests
with the juvenile court if the child is not yet of age; the court must ascertain the child's interest
in acquiring the surname
paternal surname and the possible prejudice that could result from the loss of the maternal
surname.
B) custody of the minor and possible entry into the parent's legitimate family: the judge will
also decide regarding the custody of the minor natural child, recognized by the parent during
marriage.
In some cases, and with special precautions, the natural child is allowed to live with the
legitimate family of its parent. In this way, it is intended to protect both the child's interest in
not living in a hostile environment and the interest of the legitimate family in preventing the
entry of a stranger from undermining the stability to harmony.
The court may authorize this entry under special conditions.
If the parent requesting entry into the legitimate family recognized the child after the marriage
was celebrated, it must be ascertained:
1. that the entry does not conflict with the interests of the minor child
2. that there is the consent of the other non-separated spouse and the legitimate children
permanently living together,
older than 16 years of age
3. That there is the consent of the other parent who has recognized the child.
If the parent requesting the child's entry into his or her lawful family recognized the child
before marriage, there is no need for the consent of children. Spousal consent will also not
be needed if it is shown that:
-the child is already cohabiting with the natural parent at the time of marriage
-the other spouse who knew of the existence of the natural child. Instead, the consent of the
natural parent who recognized the child is always required, by virtue a of the exercise of the
powers characterizing parental authority, which is held by the parent who made recognition.
