For a marriage to be dissolved by mutual consent, the two spouses must have agreed on the fundamental matters governing their relations (chiefly of a financial nature), while particular attention must be given to cases in which children have been born and are still minors at the time of separation. In such cases, it is essential that the parents have considered and agreed on how best to resolve, in line with the best interests of their children, all matters affecting them (custody, child support, contact, place of residence, etc.).
What happens if there is no agreement on a private settlement?
Even though the parents may have agreed on the above matters and incorporated their agreement into a private settlement, which is in turn included in the notarial deed dissolving the marriage in order to acquire enforceability, it is not unusual for disputes and disagreements to arise after the fact. The causes of such unfortunate incidents vary (ill-tempered or bad-faith conduct by the parties, breach of the settlement terms, a general change of circumstances, etc.) and need not be analysed here; however, they typically ignite and escalate tensions between the parties, leaving no room for dialogue. In these cases, in order to resolve the situation and put an end to the disputes, for the benefit of the children, recourse to the courts becomes the only option.
Indeed, for the swift resolution of disputes and to ensure the prevention of risks arising from conduct that would be harmful to the minors, it is advisable to file an application for interim measures, in particular accompanied by a request for a temporary restraining order. The judge, ruling on a case-by-case basis and assessing in each instance how the best interests of the children can be most effectively safeguarded, may decide differently from what was agreed and was in force under the private settlement, without being bound by it.
Can the child’s place of residence be changed by a temporary restraining order?
It is common for a temporary restraining order to alter the place of residence of a minor child, where it has been held that the child’s interest is to continue residing with the mother, who – at her request – was granted leave to relocate to a prefecture other than the one in which the father resides, even though this was expressly prohibited by the private settlement. This was because it was deemed likely that the violent, hot-tempered and abusive character of the other parent, both towards the mother and the child, did not justify the application of that clause; on the contrary, securing the harmonious development of the minor required the relocation of mother and child.
Can a decision on interim measures alter custody, joint custody, or the amount of child support?
Likewise, in cases where child support has already been agreed but, in the meantime, needs change, we modify the support payment to cover present needs that had not been calculated in the past, amending, by way of interim measures, both court judgments and private settlements.
Custody, joint custody, contact, and any other matter that has already been regulated may be regulated anew by a fresh court ruling if circumstances change.
- See also article Interim Measures
- See also article Revocation of Decision on Interim Measures
- See also article Interim Measures for Real Estate
- See also article Interim Measures for Possession
- See also article Interim Measures – Harassment and Fake Instagram/Facebook Accounts
- See also article Interim Measures against Facebook/Twitter/Instagram
- See also article on Interim Measures – Relocation from the Family Home
- See also article on Interim Measures – Joint Custody of a Child
- See also article on Interim Measures – Custody and Child Abduction
- See also article on Interim Measures – Change of City for Minor Children
FREQUENTLY ASKED QUESTIONS ON INTERIM MEASURES IN FAMILY DISPUTES
1. When are interim measures needed in a family dispute?
When, following a divorce by mutual consent or even during the marriage, urgent situations arise that threaten the interests of a minor child or your own position as a parent, recourse to the courts becomes the only option. Common scenarios include the non-payment of agreed child support, breach of contact rights, the abrupt change of the child’s place of residence by the other parent, or the manifestation of abusive conduct. Interim measures, particularly when accompanied by a request for a temporary restraining order, secure immediate judicial protection until the final ruling on the main case.
2. What can I request through an application for interim measures?
The range of remedies sought is wide and is tailored to the needs of each case. As a rule, applications seek the provisional grant of custody, the determination of provisional child support, the regulation of contact with the child, leave to relocate to another city, the modification of terms already agreed in a private settlement when circumstances have changed, and even relocation from the family home in cases of domestic violence. The judge is not bound by what was previously agreed and always rules on the basis of the best interests of the child.
3. How quickly is a temporary restraining order issued?
The temporary restraining order is the fastest tool of civil procedure. As a rule, it is heard on the same day or the day after the application is filed, while in particularly urgent cases (e.g. risk of child abduction or abuse) it may be granted immediately. The application for interim measures is set down for hearing within a few weeks to months, depending on the Court of First Instance. The decision on interim measures is usually issued within 1–3 months of the hearing and remains in force until the issuance of a final judgment on the main lawsuit.
4. What documents do I need in order to file the application?
Essential documents include the private settlement (if any), the notarial deed dissolving the marriage, family status and birth certificates of the children, tax assessment notices and income statements of both parents, evidence of the child’s expenses (schools, medical care, activities), as well as any material substantiating the change of circumstances or the harmful conduct of the other parent (messages, witnesses, medical certificates, police reports). The better documented the file, the greater the likelihood that the application will be granted.
5. What are my chances of having the original agreement modified?
The chances depend on whether a substantial change of circumstances since the conclusion of the private settlement can be demonstrated. Case-law accepts changes of place of residence, increases or decreases in child support, and changes to custody or joint custody, where this better serves the interests of the child. Where abusive character, neglect, inability to cover increased needs, or a material financial change in one of the parents is substantiated, the prospects of success are significant. The judge rules on a case-by-case basis and is not bound by previous arrangements.
6. What is the lawyer’s role in such cases?
Family disputes call for a combination of legal experience and composure, since alongside the legal dimension there is intense emotional pressure. The lawyer evaluates the facts, selects the right strategy (application for interim measures, temporary restraining order, revocation of a previous decision), drafts a well-substantiated pleading focused on the child’s interest, gathers evidence and represents the client in court. Our firm systematically handles cases of custody, child support, relocation and contact, with an emphasis on the immediate protection of parent and child.