Law is a changing thing: the rules adapt to the new uses of society as the sense of what is just or unjust evolves.
Thus, if a few years ago the general solution in case of separation or divorce was single-parent custody (usually granted to the mother), little by little the laws and customs have been modified to a point where joint custody is already the preferred solution.
Today we analyze the evolution of the types of custody and we tell you how to obtain joint custody.
This is, without a doubt, one of the issues that has generated most debate in recent years as far as Family Law is concerned.
The starting point is always and in any case to protect the interests of the child.
The search for the ideal solution for each case revolves around this concept, so that, although joint custody is now the formula that should be applied as a priority, this does not in any way exclude opting for single-parent custody when circumstances so require.
Beyond that, in a climate of normal cohabitation with both parents, what should be the solution preferred by the judges?
Is it preferable for the child to spend the same amount of time with both parents or should the child be given greater stability in a single home?
From single-parent custody to joint custody
Before the reform brought about by Law 15/2005, July 8, 2005, the law regulating custody and guardianship in Spain was Law 30/1981, July 7, 1981, which modified the regulation of marriage in the Civil Code and determined the procedure to be followed in cases of annulment, separation and divorce.
The model established by the 1981 regulation was single-parent custody, although this did not mean a prohibition of shared custody.
However, its application was very residual.
It is important to note that the wording of Article 92 CC as it stood at that time did not rule out the possibility of applying such a regime.
With this starting point, it is a judgment of the Supreme Court that marks an important turning point that would later lead to a legislative change.
It is a judgment of July 7, 2011, which established shared custody as the optimal generalized solution, always preferable to granting it exclusively to one of the spouses.
All this, we insist, provided that such a decision operates for the benefit of the child, which is the main objective that judges must attend to when they encounter a case of this type.
In this sense, the Supreme Court has assured that:
“What is important to guarantee or protect with this procedure is the interest of the minor, who although it is true that he/she has the right to relate with both parents, this will occur as long as his/her fundamental rights to physical and psychological integrity, freedom, education, privacy… are not harmed. Hence all the requirements established in art. 92 CC must be interpreted with this sole purpose. Hence, the relations between the spouses alone are neither relevant nor irrelevant to determine joint custody and guardianship. They only become relevant when they affect, to the detriment of the child’s interest”.
The Court made it clear that shared custody should be considered the most appropriate to the legal regulation established in Article 92 of the Civil Code.
And it even stated that this regime is the most advisable because it allows the effectiveness of the right that children have to relate to both parents, even in crisis situations, whenever possible.
In a ruling dated October 30, 2014, the Civil Chamber further stated that “shared custody entails as a premise the need for a relationship of mutual respect between the parents that allows the adoption of attitudes and behaviors that benefit the minor, that do not disturb his emotional development and that, despite the emotional breakup of his parents, he is kept in a family frame of reference that supports a harmonious growth of his personality”.
What criteria do judges follow to grant joint custody?
The Supreme Court has also established a series of basic criteria to assess whether or not the interests of the child are protected, as it is an abstract legal concept.
These are the criteria that a judge can take into account to opt for a shared or single-parent custody and that can help you to achieve this solution in your case:
- The previous practice of the parents in their relations with the child and their personal skills.
- The wishes expressed by competent minors.
- The number of children.
- The fulfillment by parents of their duties in relation to their children and mutual respect in their personal relationships and with other persons living with them.
- The location of their homes, schedules and activities.
- The result of all legally required reports.
- Any other that allows minors to live an adequate life in a coexistence that will be more complex than before.
There are circumstances that can lead to the exclusion of joint custody, such as, according to the Supreme Court, situations in which the children witness confrontations between their parents every time they coincide, or when the need to adopt any decision in common in relation to the children turns into a violent dispute that the minors are forced to witness.
The key, for the Supreme Court, is that this climate can end up emotionally damaging the children, who will suffer with each new meeting between their parents.
As for the physical distance of the domiciles, according to the judges, this is a determining but not excluding factor, since what is essential is that such a difference be compatible with the joint exercise of custody.
Changes in the Civil Code to promote shared custody
The case law was followed by a possible legislative reform of the Civil Code aimed, among other things, at making shared custody the norm, unless exceptionally it is more convenient to do otherwise.
In 2013, a Preliminary Draft Bill on the exercise of parental co-responsibility in the case of annulment, separation and divorce was given the go-ahead.
However, many of its provisions aroused controversy and the text received harsh criticism from institutions such as the Council of State.
Now that the situation has come to a standstill, it seems that the legislator’s intention is to give shape to the trend that the judges have already set and to adapt the wording of the Civil Code to this solution, since it does not currently make it at all easy.
Currently, Article 92 of the Civil Code states that:
- “The parents may agree in the regulatory agreement or the judge may decide, for the benefit of the children, that parental authority be exercised in whole or in part by one of the spouses”, so that priority is not given, at least formally, to joint custody.
- “The shared exercise of the custody and guardianship of the children will be agreed upon when so requested by the parents in the proposal of the regulatory agreement or when both reach this agreement in the course of the proceedings”, thus limiting this possibility to the request of the parties.
- “Exceptionally (…) the judge, at the request of one of the parties, with a favorable report from the Public Prosecutor’s Office, may agree on shared custody and guardianship on the grounds that this is the only way to adequately protect the best interests of the minor“, which is why this measure is considered exceptional when one of the parents requests it and there is no agreement.
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Contact me if you need help clarifying what type of custody is appropriate in your case.
