Today we analyze an important judgment issued by the Supreme Court last November 20, 2018, which answers a key doubt for thousands of families with children in common who have gone through a separation or divorce: is the will of the children enough to modify the custody regime? The position of justice on this point has changed over time and tends to become more flexible, giving more value to the will of the children.
First through case law and, in recent years, through an important legislative change. The sentence that we comment on comes to collect a more favorable position to take into account the will of the child, avoiding that what is agreed in the regulatory agreement is ‘petrified’ in time. If you need help in a separation or divorce case, contact us without obligation. In the case we are analyzing today, the Supreme Court studies a case in which a single-parent custody regime was adopted in favor of the mother, with a visitation regime for the father.
Shortly thereafter, the father filed a lawsuit requesting a modification of the measures and the establishment of a shared custody system, which was accepted in the first instance.
However, after an appeal by the mother, the next sentence returned to the previous situation, arguing that, although it was “laudable that the child wants to spend more time with her father”, this “does not imply a factual change or a change of facts”.
Thus, according to this judgment, “there is no substantial change that justifies the modification of what was agreed with the intention of permanence”.
The importance of the will of the children when deciding on custody
It is important to take into account the legislative and jurisprudential changes that have been taking place in recent years.
Law 15/2015, of 2 July, on Voluntary Jurisdiction, first final provision, section 23, introduced an important reform of Article 90 of the Civil Code (CC):
“The measures adopted by the Judge in the absence of agreement or those judicially agreed upon by the spouses, may be modified judicially or by a new agreement approved by the Judge, when the new needs of the children or the change in the circumstances of the spouses so advise .
The measures that had been agreed before the judicial Secretary or in public deed may be modified by a new agreement, subject to the same requirements demanded in this Code”.
The novelty lies in the fact that the new needs of the children may be taken into account, and not only the change of circumstances of the parents. This new reason to modify the divorce measures had been applied, however, in many sentences, which took into account -and gave preeminence- to the interest of the minor in the analysis of the issues related to their protection, custody and guardianship, “considering that the new needs of the children will not have to be supported by a substantial change, but a certain one”, as the Supreme Court recalls in the sentence we are commenting on.
Thus, the Supreme Court assures that the appealed sentence makes “practically unfeasible the possibility of changing the established measures, with evident marginalization in its motivation of the interest and benefit of the minor in the interested change of custody”.
“There have been changes since then: the age of the child, her desire to spend more time with her father or the same as with her mother and the progressive change in the jurisprudence of this Court regarding the modification of previously agreed measures.
What the sentence does is to petrify the situation of the child from the moment of the agreement, in the face of a decided desire to increase the relationship with her father, without taking into account the changes that have occurred since then.
It is often forgotten that the wording of Article 92 does not allow one to conclude that [la custodia compartida] it is an exceptional measure, but, 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, whenever and as long as it is possible”. “Among these criteria, the wishes expressed by the minors and the results of the legally required reports must be taken into account.The Court has also found that “the child’s parents, as well as any other system that allows the children to have an adequate life in a cohabitation that must necessarily be more complex than the one that takes place when the parents live together, and it is evident that all of them point to the convenience of adopting this system of guardianship and custody”.
In short, the Supreme Court considers that the evaluation of the interests of the minor “has not been adequately safeguarded” in the appealed judgment.
Therefore, the appeal of the father is upheld, annulling the appealed judgment and assuming the first instance judgment, establishing the shared custody regime. You may be interested in:
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