La semantica giuridica della responsabilità genitoriale

Abstract

In 2013 the legislator replaced, in all the legal system, the category of “potestà genitoriale” with that of “responsabilità genitoriale”. Beyond the perplexities expressed in doctrine regarding this choice, according to some not fully adhering to the directives given by the delegated law, the categorical change has undoubtedly acknowledged – and, at the same time, started – an evolution of the legal order of parent-child relationships of extraordinary systematic and systemic impact. In particular, the meanings of “responsabilità genitoriale” are not reduced to a simple specification of the content of the “potestà genitoriale”, that is the subjective legal situation traditionally linked to the power of parents over minor children; but they go beyond the outline of this dogmatic figure, inserting themselves in the dimension of the care of the child's interest in the order of his fundamental rights. This content, of an essentially relational character, is recognized with respect to any right recognized to the child, for the exercise of which the "responsible" must act according to the realization of the interest. This functional profile therefore constitutes the parameter for evaluating the actions of the parents, supervised by the system of authorizations for the patrimonial acts and by the system of protection instruments with regard to the realization of personal rights. The child must be recognized as having a higher self-determination capacity, the more certain is his capacity for discernment, which sustains the identity, which presides over the exercise of personal rights.