In this case, we are dealing with a 10 year old child who has always lived with his mother and who, as a result of this judgment, will live with both parents. What exactly does the Supreme Court say about the change from single-parent custody to joint custody?
From single-parent to joint custody: a case fraught with debate
Specifically, the judgment of the Supreme Court that we are commenting on, dated October 26, 2020, resolves the claim that was initially filed by the father requesting a modification of the measures and, specifically, that the regime of shared custody of his son be agreed upon.
At the time of the divorce, the regulatory agreement established that the custody would be for the mother, to whom the use of the family home was also attributed.
At the time of the lawsuit filed by the father, the child was 7 years old (10 years old as of the date of the Supreme Court decision).
The cause alleged by the father to justify this change would be a change of circumstances with respect to those existing at the time of the issuance of the divorce judgment, which would justify changing to a shared custody regime. The plaintiff claimed that he had taken advantage of a flexible work plan as an employee of the Banco de Santander that allowed him to combine his work with the care and attention of the child, on an alternating week basis.
In addition, the father was expecting a new child with his new partner, with the consequent desirability of a relationship between the two siblings.
In response to this claim, the mother objected and alleged the existence of conflict between them . In addition, she denied the existence of altered circumstances, and argued that the only intention of the father would be “to stop paying alimony and to annul the attribution of the use of the house”.
The resolution of this case has been full of debate: at first, the Court of First Instance partially upheld the claim and established a regime of shared custody and guardianship, establishing that each parent would pay the maintenance expenses of the child during the periods of custody.
It was also stated that the father was to pay 350 euros and the mother another 150 euros per month into a joint account to cover the ordinary expenses of the child and, finally, that the mother and the child would continue to have the use of the home for a period of two years.
Furthermore, in that judgment, the judge focused on the psychosocial report, from which it could be concluded that the child had a good bond with both parents. In addition, both parents presented a “viable care plan, with similar family and educational criteria, so that the shared custody and guardianship regime would be the most beneficial for the child at this time”.
In response to this decision, the mother appealed this decision, passing the case to the Provincial Court of Madrid, which decided to uphold the appeal and return to the state of affairs as set out in the divorce settlement agreement.
According to the Court, there would not be a substantial change in the father’s circumstances, emphasizing that“what was determined in the report of the Public Prosecutor’s Office or what was recommended in the psychosocial report cannot prevail, since what was requested would be nothing more than a mere ‘desire or experiment’ for the aforementioned custody regime to work out well”.
In the latter instance, the case was finally resolved in his favor, with the support of the Public Prosecutor’s Office, which assured that, in its opinion,“this assertion of the sentence of the Court is biased and seen from a simplistic point of view, without assessing the interests of the minor, based on the fact that there is a regulatory agreement that must be respected, without taking into account the new circumstances that have occurred, which are trivialized”.
Shared custody as the best formula to protect the best interests of the child
Finally, the Supreme Court is forceful in its response to the Provincial Court of Madrid and, in its arguments in favor of the father, assures that “given the current age of the minor, the new work schedule of the father, the sister, given the father’s new relationship, cause a notorious change in the family situation that makes it possible to declare that there has been a substantial modification of circumstances”.
The sentence goes on to comment that there is no “data that advises against the shared custody system”, and recalls that“it cannot be intended to petrify what was agreed in the regulatory agreement, when there are circumstances that make its modification advisable”. Finally, there is sufficient capacity for dialogue between the parents and the existence of a new sister, the new relationship of the father, which requires prioritizing contact between the two siblings.Consult our family lawyers if you need help in a case related to divorce and custody.
