Assegnazione della casa familiare e interesse dei figli al mantenimento del pregresso habitat domestico: una rilettura critica

This article critically examines the allocation of the family home following parental separation in Italian law, focusing on the tension between children’s interest in maintaining their domestic habitat and other competing interests. While Article 337-sexies c.c. mandates that courts give “priority” consideration to children’s interests, jurisprudence has often interpreted this as an absolute criterion, creating an interpretive automatism that neglects case-by-case evaluation. The author argues for a more nuanced approach that recognizes children’s wellbeing as situational and relational, dependent on the wellbeing of caregiving adults and the quality of family relationships. Special attention is devoted to vulnerable situations involving disabled parents or children, and to the legal gap affecting “social children” in reconstituted families and same-sex couples, where allocation rules tied to formal parent-child status may fail to protect meaningful relationships. The analysis advocates for flexible, context-sensitive decisions that balance multiple family interests while genuinely prioritizing—rather than rigidly prescribing—children’s needs.