Today we comment on a judgment that has caught our attention because it confirms, as it was already judged in the first instance, a regime of shared custody for annual periods, corresponding to the school year.
This curious sentence (which is not the only one of this type, although it is true that it is not the most frequent solution) confirms one of our maxims when working in Family Law: in matters related to custody, tailored solutions are the key to the welfare of all family members, always giving value to the opinion of the children when they are old enough and mature enough to be heard.
They are the first ones interested in the agreed custody regime to be adjusted to their needs.
Shared custody for annual periods: a new judgment
The judgment to which we refer, handed down by the Provincial Court of Albacete on March 10, 2021, confirms the judgment of the lower court, which took into account both the report of the psychosocial team (tests and interviews) and the opinion of the minors when making its decision.
The conclusion of the Court was that both parents could provide the daughters with the attention and care they needed, taking into account the age of the children (then 16, 14 and 11 years old) and their degree of autonomy.
From all this, it was concluded that the best way to develop shared custody was for this regime to be exercised by each parent in the home that each one occupies on a rental basis and for school years, without noticing that it could be more beneficial than alternating custody by weeks, as requested by the mother.
In addition, a balanced regime of stay and visitation and vacations was established (alternate weekends and two afternoons a week, as well as distribution of the Christmas, Easter and summer school vacations), all this taking into account that both parents reside in the same town and that this allows them “frequent and almost daily” contact.
Faced with this decision, the mother decided to file an appeal, requesting a shared custody regime divided into weeks.
In her appeal she argued that, despite the fact that the psychosocial report recommends annual periods, it is her opinion that “the period of one school year established for the alternation of shared custody is an excessively long period”.
And not only because she herself considers it so, but because, she assures, “it is highly unusual in the doctrine to establish such long periods of stay, since, regardless of the age of the minors, a school year is an excessive time that undoubtedly favors the deterioration of the paternal-maternal-filial relations and especially in cases of conflictive relations”.
The appellant’s defense also argues that the fact that the children remain under the influence of only one of the parents for such a long period of time “would undoubtedly favor the alienation of the other parent, especially in this case, in which the relationship between both parents is complex and problematic”.
The appellant also asserts that a custody divided into weeks guarantees to a greater extent “the right that the children have to relate to both parents, even in crisis situations, whenever and as soon as it is possible.”
The Provincial Court’s response, however, is clear in assuring that this regime “would cause less conflict when it comes to organizing cohabitation and visits or stays with one or the other parent, given the poor relationship that exists between the two.”
The ruling also sends a message to both parents, warning them that “they should be aware that they will have to maintain a flexible attitude and overcome their differences, if what they really intend, and there is no doubt, is to act for the benefit of the children, providing them with the welfare and stability necessary not only in the emotional and affective sphere, but also in their personal development”. It is worth noting the fact that, in this case, neither of the parents expressly proposed a shared custody regime: the father wanted the daughters to decide and the mother only accepted shared custody of the three daughters in the event that the attitude of one of them (with whom she had a bad relationship) changed.
In her initial lawsuit, the mother requested the deprivation of parental authority over the daughters or, alternatively, the exclusive exercise of parental authority in favor of the plaintiff.
The father, on the other hand, requested single-parent custody in his favor. In short, this is a case in which there is a high level of conflict, with a multitude of civil and criminal proceedings, including one of the daughters against her mother.
This indicates that a way to reduce the tension in these cases can sometimes be to propose longer periods of stay in order to generate fewer moments of friction and to favor the calm development of the children’s lives. If you need help from a family lawyer for a case related to child custody, contact our team of lawyers in Barcelona.
