AGGIORNAMENTO: diritto di visita ai tempi del Coronavirus

Diritto di visita ai tempi del dell'emergenza Coronavirus

Rispetto all’articolo pubblicato lo scorso 18.03.2020, si impone un aggiornamento in materia di diritto di visita dei genitori separati/divorziati nel corso dell’attuale Emergenza COVID-19, alla luce di un nuovo intervento ministeriale e di recentissime pronunce giurisprudenziali in materia.

Si era infatti evidenziato, sulla base del disposto dei decreti ministeriali dell’8 e del 9 marzo 2020 e della successiva nota sul sito del Governo del 10.03.2020, che non si riteneva dover esserci una sospensione del diritto di visita dei genitori non collocatari stabilito nei provvedimenti giudiziali o negli accordi separativi/divorzili, anche laddove i genitori non conviventi dimorassero in un comune diverso da quello di residenza dei figli, ferma, naturalmente, la necessità di assumere tutte le precauzioni opportune.

Tuttavia, il nuovo DPCM 22 marzo 2020 ha previsto, all’art. 1, comma 1, lettera b) che “è fatto divieto a tutte le persone fisiche di trasferirsi o spostarsi, con mezzi di trasporto pubblici o privati, in un comune diverso rispetto a quello in cui attualmente si trovano, salvo che per comprovate esigenze lavorative, di assoluta urgenza ovvero per motivi di salute (..)

Dunque, mentre nel vigore del DPCM 8.03.2020 erano consentiti gli spostamenti motivati da “situazioni di necessità” e da comprovate esigenze lavorative e motivi di salute, il decreto del 22.03.2020 ha stabilito che gli unici spostamenti ammessi siano quelli giustificati da esigenze lavorative, da motivi di salute o da esigenze “di assoluta urgenza”.

Per tale ragione, alcune ultimissime pronunce giurisprudenziali di merito (come nel caso della Corte di Appello di Bari e del Tribunale di Bari) si stanno orientando per la provvisoria sospensione, fino al termine del periodo di emergenza in corso, del diritto di visita per i genitori separati/divorziati non collocatari dei figli, in primis nel caso in cui il genitore non convivente con il figlio risieda/sia domiciliato in un comune diverso da quello in cui è collocato il figlio, essendo lo scopo primario dei provvedimenti governativi adottati quello di limitare in maniera rigorosa i movimenti sul territorio nazionale, al fine di evitare la proliferazione del contagio.

Secondo un’interpretazione ancor più restrittiva delle disposizioni attualmente vigenti, tale sospensione dovrebbe riguardare anche le ipotesi di genitore non collocatario e figli residenti nello stesso Comune e nel caso in cui il genitore non collocatario abbia un impiego che lo esponga maggiormente al rischio del contagio, ciò in quanto il diritto di visita del genitore non collocatario deve rapportarsi con il preminente diritto alla salute del minore.

Le ultimissime pronunce dei giudici pugliesi, pertanto, ritenendo il diritto-dovere dei genitori e dei figli minori di incontrarsi recessivo rispetto alle limitazioni alla circolazione delle persone attualmente vigenti e al prioritario diritto alla salute, si sono orientate nel “trasformare” temporaneamente il diritto di visita, attraverso gli strumenti tecnologici ormai a disposizione di tutti, in videochiamate e contatti via skype, sospendendo conseguentemente fino ad una normalizzazione dell’attuale situazione, gli incontri dei figli con i genitori non collocatari.

ULTIM'ORA: I CHIARIMENTI GOVERNATIVI 

In data 01.04.2020 il Governo ha pubblicamente chiarito i dubbi sorti all'indomani delle ultime pronunce giurisprudenziali in tema di frequentazioni tra genitori separati/divorziati e figli minori, indicando sul proprio sito come risposta alla FAQ "Sono separato/divorziato, posso andare a trovare i miei figli minorenni?" la seguente interpretazione: "Si. Gli spostamenti per raggiungere i figli minorenni presso l'altro genitore o comunque presso l'affidatario, oppure per condurli presso di sé, sono consentiti anche da un Comune all'altro. Tali spostamenti dovranno in ogni caso avvenire scegliendo il tragitto più breve e nel rispetto di tutte le prescrizioni di tipo sanitario (persone in quarantena, positive, immunodepresse, etc.), nonché secondo le modalità previste dal giudice con i provvedimenti di separazione o divorzio o, in assenza di tali provvedimenti, secondo quanto concordato tra i genitori".

Ciò posto, stante l'interpretazione governativa opposta rispetto alle soluzioni adottate dai giudici pugliesi e di altre regioni italiane, si può ragionevolmente concludere che ogni fattispecie dovrà essere valutata in concreto anche in relazione al potenziale rischio di contagio (ad esempio collegato all'attività lavorativa dei genitori, ai mezzi utilizzati per gli spostamenti, ecc.), facendo in ogni caso appello al buon senso.

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