The result has been a standstill in the courts to protect citizens and legal professionals, as well as to enforce the protocols related to the state of alarm we are witnessing.
Of course, the halt in judicial activity has generated many doubts as to which types of proceedings should be processed and which should not.
This applies to Family Law: during this confinement conflicts are arising related to economic measures, custody and guardianship… and the General Council of the Judiciary (CGPJ) gave margin to the courts to discuss and create criteria applicable in each province on key points such as how to exercise custody, something that, as we have already seen, the Family judges of Barcelona have already done.
Now, the Government takes a new step and creates a new special judicial procedure to deal with family conflicts generated during the confinement and the state of alarm due to Covid-19.
What is the new special Family procedure for the state of alarm?
Among other measures, it includes a new procedure for the “special and summary for the resolution of family law issues directly arising from the health crisis”.The report is based on the idea that the measures adopted by the health authorities have had an impact on the normal course of the child custody and visitationThis sometimes leads to imbalances in the time of enjoyment, “which is foreseeable that it could lead to lawsuits and applications before the courts with jurisdiction over family law”. In addition, the Royal Decree-Law takes into account the fact that the economic consequences of the Covid-19 crisis may lead to changes in the economic situations of persons liable to pay alimony. or in the situations of those who receive them, which will give rise to proceedings for the modification of these measures. “In order to provide a rapid and effective response to such claims” this special procedure is regulated, thinking in particular of the best interests of the minors concerned and contributing to their better protection.
What is the scope of application of the new special Family procedure for the state of alarm?
The Royal Decree-Law establishes that, during the state of alarm and up to three months after its termination, the following claims will be decided through this special and summary procedure:
a) Those dealing with issues related to the reestablishment of the balance in the visitation or shared custody regime when one of the parents has not been able to comply with the established regime in its strict terms and, if applicable, shared custody in force, as a consequence of the measures adopted by the Government and other health authorities with the purpose of avoiding the spread of Covid-19.
b) Those whose purpose is to request the revision of the definitive measures on marriage burdens, economic pensions between spouses and alimony recognized to the children, adopted in application of the provisions of Article 774 of Law 1/2000, of January 7, of Civil Procedure, when the revision is based on the substantial change in the economic circumstances of spouses and parents as a consequence of the health crisis produced by Covid-19.
c) Those seeking the establishment or revision of the obligation to provide maintenance, when such claims are based on the fact that the economic circumstances of the relative obliged to provide such maintenance have substantially changed as a result of the health crisis caused by Covid-19.
Know the procedure for coronavirus family law cases
As stated in the Royal Decree-Law, the procedure will be initiated through a lawsuit “with the content and form of an ordinary lawsuit”, providing the necessary evidence.
In the lawsuit for review of the definitive measures for economic reasons, a certificate issued by the entity managing the benefits must be presented, showing the monthly amount received as unemployment benefits or subsidies, in the case of legal unemployment, or the certificate issued by the Tax Agency (AEAT) or the competent body of the autonomous community certifying the cessation of activity or decrease in income, in the case of self-employed workers.
Once the claim has been admitted for processing, the counsel for the Administration of Justice will agree to summon the parties and the Public Prosecutor’s Office, where appropriate, to a hearing to be held within ten working days following the date of admission of the claim.
Before the celebration of the hearing, it will be possible to try that the parts arrive at an agreement, which will be homologated judicially.
In case there is a minor involved in the procedure, this agreement can only be homologated considering the best interest of the minor . In addition, before the hearing, in proceedings related to custody and guardianship, the minor children will be heard in a reserved manner if the court deems it necessary and, in any case, those over 12 years of age.
The hearing will begin by giving the floor to the plaintiff to ratify the claim or to amplify it without making substantial variations, and then to the defendant to answer the claim.
The parties may request, at least five days prior to the date of the hearing, the evidence which, being due to be taken at the hearing, requires a summons or subpoena, or that documents in the possession of public or private institutions, which are not at their disposal, be requested.
In addition, the parties must attend the hearing with the evidence they intend to rely on, and such evidence, as well as that which the judge may order ex officio, must be taken at the hearing itself.
If this is impossible with respect to any of the evidence, such evidence shall be taken within the period indicated by the judge, which may not exceed fifteen days.
Once the evidence has been taken, the parties may be given a turn to speak in order to formulate conclusions orally.
At the end of the hearing, the judicial body may issue a decision, in the form of a judgment or an order as appropriate, orally or in writing within three working days.
An appeal may be lodged against the decision terminating the proceedings.
In addition, in all matters not provided for in the Royal Decree-Law, the provisions of Law 1/2000, of January 7, of Civil Procedure, for the processing of oral proceedings, will be supplementary.
Which court should resolve these cases?
The Royal Decree-Law establishes that “the court that has ruled on the visitation or joint custody regime whose rebalancing is being requested or that has agreed on the definitive measures whose review is sought” will be competent to resolve these proceedings, in the case of these measures – points a) and b).
a) and
b)-.
In the case of measures relating to alimony, when it is a question of the establishment of the maintenance claimed by one parent against the other on behalf of the minor children, the Court of First Instance of the place of the last common domicile of the parents will be competent.
In the event that the parents reside in different judicial districts, the competent court, at the option of the plaintiff, shall be the court of the defendant’s domicile or the court of the child’s residence. On the other hand, when the claim is for a review of the maintenance claim, the court that has already ruled on the claim will have jurisdiction.
In the case of the provision of maintenance in favor of any other maintenance provider, the general rules of Article 50 of the Civil Procedure Act will apply: unless the law provides otherwise, the territorial jurisdiction will correspond to the court of the domicile of the defendant and if he does not have it in the national territory, the competent judge will be the one of his residence in that territory.
What is the advice of the Family Judges of Barcelona?
Although we have already dedicated an article to it, we recall some of the recommendations approved by the Family Judges of Barcelona on the occasion of the declaration of the state of alarm and confinement.
- The declaration of the state of alarm through RD 463/2020, of March 14, does not legitimize the non-compliance with court rulings.
By this, the judges mean that what is dictated in divorce or separation sentences, as well as in case of sentence execution proceedings, must be enforced. The state of alarm cannot become an excuse for non-compliance if there is no legal reason to justify it or an agreement between the parents to act differently. - In any case, parents must observe the regulations of the governmental and health authorities in order to prevent the spread of the coronavirus, seeking a responsible exercise of parental authority and reaching the best possible agreements, always bearing in mind that this is an exceptional situation.
- If one of the parents presents symptoms of contagion or has tested positive in the Covid-19 test, in the interest of the minor children, and to avoid its propagation, it is preferable that the guardianship and custody be held by the other parent, in order to avoid its propagation to the minor whose custody is entrusted to him/her.
In this sense, it should be understood that, automatically, there is a cause of force majeure, which provisionally suspends the measures agreed in the process in which they were agreed. - Apart from cases of symptoms of contagion or a positive result in the Covid-19 test, and with a view to the most effective compliance with the agreements of the health authorities -which advise reducing the mobility of persons as much as possible, except in exceptional cases justified by documentation-, the parental responsibility system must be exercised by the custodial parent (in cases of sole custody) or by the parent who currently has custody (in cases of shared custody).
- In order to achieve the necessary and desirable parent-child contact, the custodial parent shall facilitate, particularly by telematic means (Skype, Facetime, or WhastApp video call) the contact of the child/children with the non-custodial parent, as long as the routines or rest schedules of the children are not disturbed.
- With respect to the
enforcement proceedings which, if any, are filed for breach by one of the parents of the terms of the custody and guardianship, “the enforcement action will be registered telematically, provided that it is filed electronically by Ejcat, and, given the current suspension of the procedural deadlines, it will be given the ordinary procedure, once the declaration of the state of alarm or, as the case may be, its extension has been declared.
given the current suspension of the procedural deadlines, it will be given the ordinary procedure, once the declaration of the state of alarm or, where appropriate, its extensionhas been lifted; unless the party filing the complaint or brief responsibly manifests the urgency of the same and the risk to the minor.”
If you need a family lawyer for any case related to the custody of your children, alimony or any other aspect related to this branch of law, contact us without obligation: we continue to work in all those procedures in which it is possible to do so, including the search for out-of-court agreements through mediation and negotiation.
