To know the aspects that the judge values when awarding shared custody shared custody is key to prepare the case, know our chances of success and work on it in the future to improve our family relationship.
Therefore, in this post I explain what judges say today when opting for this regime of exercise of custody and guardianship. Remember that, since 2011, joint custody is considered the “normal” solution in case of separation or divorce, above single-parent custody.
Provided, of course, that this is in favor of protecting the best interests of the child, who is always at the center of the custody process.
It is important to keep in mind that, despite what the Supreme Court has said, single-parent custody -usually in favor of the mother- is still the most common solution.
One possible reading is that many judges are still anchored in this way because it is the “traditional” one.
However, another possibility is that the division of tasks in the upbringing of the children is not equal in many couples and, therefore, the judge chooses the person who effectively takes care of the child to a greater extent when deciding on custody.
Therefore, our role as parents is key to opt for joint custody.
What factors does the judge value to grant joint custody?
In this regard, the Supreme Court itself states that “it is often forgotten that the wording of Article 92 does not lead to the conclusion that joint custody is an exceptional measure, but that, on the contrary, it should be considered normal and even desirable, because it allows the children’s right to relate to both parents to be effective, even in crisis situations, provided that it is possible and as long as it is possible”.
But it is not always possible and, in general, this will be considered as such on the basis of the following factors:
- Have participated in the routines of minors since birth, such as taking them to and picking them up from school, being part of WhatsApp groups or similar at school, going to doctor’s visits, going to tutorials with teachers….
- Ease of reconciling work and personal life: in particular, the working hours of the last two years, availability, reduced working hours, the possibility of teleworking, etc., will be taken into account.
- The geographical proximity of the residences and the school: in particular, the fact that the parents’ homes are located in the same municipality and/or neighborhood is an aspect that judges take into special consideration, so as not to disturb the child’s daily routine.
- That the parents’ educational systems or guidelines are similar: differences in this regard may unbalance the child.
- The existence of family support: it is positively valued to be able to count on the grandparents of the minors, having to prove their age, where they live, their personal and working condition, their state of health…
- The relationship between the parents: it is not relevant by itself to determine shared custody, but it is relevant when this relationship affects the child and harms him/her.
- The result of the report of the psychosocial team of the courts: parents and minors are interviewed to observe how they interact with each other.
- The age of the children and the number of children: in general, there is a tendency not to separate siblings.
- The wishes of minors: this will be taken into account in any case in those over 12 years of age.
However, it is important to remember that, in Family Law cases, there are no universal formulas: each case is different, as is each family, and the circumstances of each family nucleus change over time.
It is possible that a judge may not grant joint custody at a given moment or may do so progressively.
In addition, case law is increasingly tending to modify the conditions of the exercise of custody and guardianship in accordance with the child’s opinion and when necessary.
Therefore, it is important to follow the advice of our lawyer and, above all, to attend in the best possible way to the interests of our children since, after all, the main objective should always be their welfare and full development.
What aspects does the judge value when granting joint custody in Catalonia?
As for the specific case of Catalonia, it should be taken into account that this autonomous community has its own Civil Code -the Catalan Civil Code- and, in matters of shared custody, its regulation is somewhat different from that of the general Civil Code.
In general, In general, Catalonia gives clearer priority to shared custody as the main formula, while in the Catalan Civil Code it is as the main formula, while in the Spanish Civil Code this preference is not so clear and, until it is reformed, this preference arises more from the interpretation of judges and magistrates.
Book II of the Catalan Civil Code, called “Of the person and the family”, uses the concept of shared parental responsibility as an idea equivalent to that of shared custody.
In addition, this text gives great weight to the agreement between the parents, through the so-called parentality plan.
And it goes further: in its article 233.8 it ensures that, in cases of breakdown of cohabitation, the responsibilities that the parents have towards their children will not be altered, so that they maintain their shared nature and, as far as possible, must be exercised jointly.
Thus, each of the parents will have to present a parenting plan specifying how they intend to exercise their responsibilities towards the children, plans that the judge will try to reconcile.
The judicial authority, if there is no agreement or if it has not been approved, will have to determine the manner of exercising the custody, taking into account the “joint nature of the parental responsibilities”.
However, “the judicial authority may order that the guardianship be exercised individually, if it is in the best interest of the child”.
Criteria for granting joint custody in Catalonia
Finally, article 233.11 of the Catalan Civil Code contains a series of criteria and circumstances to be taken into account in order to determine the custody regime.
They are the following:
- The emotional bond between the children and each of the parents, as well as the relationships with the other people living in the respective households.
- The ability of the parents to ensure the welfare of their children and the possibility of providing them with a suitable environment, in accordance with their age.
- The attitude of each parent to cooperate with the other in order to ensure maximum stability for the children, especially to adequately guarantee the children’s relations with both parents.
- The time that each of the parents had dedicated to the care of the children before the breakup and the tasks they actually performed to provide for their children’s welfare.
- The opinion expressed by the children.
- The agreements in anticipation of the rupture or adopted outside of the agreement before the initiation of the proceeding.
- The location of the parents’ homes, and the schedules and activities of the children and the parents.
If you need help from a family lawyer in Catalonia for your custody case, contact me.
