Wondering at what age your toddler can sleep with his separated father? Learn more about age considerations, building trust, and making the transition smooth for your child in this informative article.
Even a child as young as two years old can spend the night with the non-custodial parent: in the best interest of the minor, the right to bi-parenting must be preserved.
Among the problems that arise in separations with minor children there is also the possibility for the very young child to be able to stay to sleep at the separated father ‘s house . Especially if breastfeeding and weaning are not yet complete, the mother could harbor fears for the prolonged stay of the child with the ex-spouse even during the night hours. And as we will see shortly, some judges share these concerns, refusing overnight stays of very young children with their father.
Sometimes, however, the refusal to leave the children with their father during the night is unjustified and unreasonable, and becomes a pretext for not entrusting them to him beyond the usual daytime days in which the meetings are established. Let’s see, therefore, from what age a small child can sleep with the separated or divorced father.
We tell you right away that the law does not set a minimum age for overnight stays, and the limits we will tell you about have been developed by jurisprudence. Because if the parents do not reach an agreement, they go to the judge.
Index
- The parenting plan
- The right to meet
- The principle of bi-parenting
- When the father can stay with his children
- Overnight stays at the father’s: ways and times
- Age Limits of Child Sleeping with Father
The parenting plan
Since 2023, with the entry into force of the Cartabia reform, the so-called parental plan has become mandatory , which must be attached to separation and divorce applications and must contain all the methods of custody, placement, visits and meetings with the children of the separated parental couple.
It is good practice to include the possibility of overnight stays for young children with their father directly in the parenting plan , thus foreseeing the various situations in advance (for example, the place and specific days). This will help prevent arguments and disputes in court.
A ruling by the Court of Cassation issued before 2023, which we will now tell you about, had resolved a dispute between a mother and father over the times a child spent the night with his father , was issued before 2023; another very recent ruling, from 2024, decided a dispute between separated parents that began before the Cartabia reform came into force. Now and in the future, it should be the parenting plan that regulates these eventualities, thus avoiding long disputes with an uncertain outcome.
The right to meet
Some judicial separation orders for spouses distinguish between the right to visit and the right to stay overnight and, for young children, only allow the former but exclude the latter.
This orientation, however, is not correct: it hinders the right to bi-parenting , which is expressed in the regular meeting of the separated father with his children, and must be guaranteed in the primary interest of the minors, even before that of their parents. This was affirmed by the Court of Cassation in a recent ruling [1] : the judges established that a two-year-old child can spend the night with his father at least once a week. The mother, the custodian, had opposed, but the Supreme Court rejected her appeal.
The principle of bi-parenting
“The principle of bi-parenting must always be respected , understood as the joint presence of the parents in the life of the child, suitable to guarantee a stable habit of life and solid emotional relationships with both parents, in the duty of the former to cooperate in the assistance, education and instruction of the offspring”, reads the ruling of the Court of Cassation which, as we have seen, said ok to the overnight stay of the 2-year-old child with his father.
This orientation is not new: it had already been affirmed on other occasions by the Supreme Court itself [2] which underlined how the « additional restrictions » of this kind, when imposed in custody provisions, «entail the risk of severing family relations between a young child and one of the parents, prejudicing the primary interest of the minor».
Another ruling by the Court of Cassation [3] , however, denied the father the possibility of staying overnight with his son until the child reached the age of three . The case decided concerned a child who, at the time of the presentation of the appeal in the first instance, was 16 months old and was still breast-fed. Therefore the judges – confirming the decision on the merits – considered that the times of equal co-parenting and the extension of overnight stays at the father’s home were ” irreconcilable ” with these needs typical of the tender age of the infant.
When the father can stay with his children
Even art. 8 of the ECHR (European Convention on Human Rights), where it guarantees respect for family life, legitimises interference by the judicial authority only when it does not unduly compromise the right of each parent to be together with their children . Thus, the only restrictions permitted to the right of access are those deriving from the “superior interest” of the minor himself.
Furthermore, in the case decided by the Court of Cassation, the fact that the mother – who opposed the child’s overnight stay with his father – had not indicated the specific harm that the minor would suffer, but had limited herself to deducing that his ” tender age ” advised against his separation from his mother, had played a role. This was an unconvincing argument, because it said too little and too vaguely. And in fact, it did not persuade the Supreme Court judges. But in the other case examined, it was precisely breastfeeding that determined the judges to prohibit, until the child reached the age of three, overnight stays at the home of his separated father.
Overnight stays at the father’s: ways and times
Returning to the ruling that gave the green light to the possibility that the child can sleep at the father’s house even at a very young age, the judges of the Court of Cassation, rejecting the mother’s objections, noted that the regulation of overnight stays at the father’s house “was to be considered appropriate to preserve the parental relationship, having the effect of allowing its expression with respect to moments and situations that are fundamental for the child’s growth, in the child’s primary interest”.
Finally, the Court of Cassation admitted that this right to a “ minimum ” overnight stay with the father once a week could be subject to “variations relating to weekends and weekdays ”, thus increasing the frequency of occasions in which the non-custodial parent can keep the young child with him/her even during the night for several days in a row, especially on weekends and during holidays.
Age Limits of Child Sleeping with Father
In conclusion, and after having examined the two partially contrasting rulings of the Court of Cassation, we can affirm that there is no general and pre-established age limit from which the child can be allowed to spend the night with the separated father; as we have seen, the Court of Cassation has allowed overnight stays with the father for a child of only 2 years, noting that the mother’s refusal was unmotivated, while in the case in which it prohibited it until the child turned 3, the determining circumstance was the natural breastfeeding of the child.
Therefore, there is no legal preclusion, and in practice everything depends on the circumstances and specific needs, which must be included in the agreements between the parents and, in the absence of an agreement, be accepted in the separation and divorce provisions issued by the judge. To learn more about these aspects, read also ” separation: from what age can the child sleep with the father? ” and, more generally, ” right of visitation and overnight stay of children: what rules? “.