The guardianship and custody of minor children in case of separation or divorce is always a contentious issue, there are many elements that may affect its determination and case law advances every day in its definition.
Today we focus on how the “bad influence” of one of the parents can affect the possible loss of custody.
We refer to a very recent judgment handed down by the Supreme Court, which analyzes the case of a mother who had custody of her minor daughter, with visitation for the father. She was convicted on five occasions for not complying with this regime and, according to the technical report, she had a highly negative influence on the minor in terms of cohabitation.
The minor, however, refused to move in with her father, expressing her wish to continue living with her mother, a circumstance that does not seem sufficient to maintain the situation as it has been up to now.
This is a case in which, after a process of modification of measures resulting from a lawsuit filed by the father, he was granted custody of his minor daughter, 13 years old, custody previously held by the mother. The Supreme Court ruled on the appeal filed by the mother against this decision, which came from the Provincial Court of Cordoba and, previously, from the Family Court of the same province.
Both rulings found in favor of the father.
In this case it was declared proven that the mother repeatedly failed to comply with the visitation regime established for the father, resulting in five convictions for this non-compliance.
There was also a complaint by the mother for an alleged non-payment of pensions, which was subsequently filed.
The judgment of the Supreme Court considers these points to be valid, as well as the expert evidence, consisting of a report of the Technical Team, among others.
The key is the best interest of the child
The most important point of the judgment, and the one that really interests us as jurists, is the one related to the analysis of the concept of the minor’s interest as a key reason to deny the mother her claim. The appeal alleges a violation of the Spanish Constitution by reason of the interest of the minor, “a concept developed in LO 8/2015, of 22 July”.
In this sense, two rulings of the Supreme Court are cited.
In one of them it is assured that “the rule of Article 776.3 LEC cannot be used as a sanction, regarding the possibility of changing the guardianship regime for breach of the obligations arising from the established visitation regime” (judgment of January 31, 2013).
On this point, the Supreme Court responds that “the Court does not justify at any time the change of custody as a response to the possible breaches of the mother in relation to the visitation regime, but on the contrary relies on other motivations already expressed”.
The interest of the minor does not have to coincide with his or her will.
The mother’s defense also alleges that the minor’s interests have been violated for two reasons: – The decision has been taken contrary to her wishes, since she would have stated that she wants to continue living in Cordoba with her mother and grandmother, and not wanting to go to live with her father, his partner and her son.
– No account has been taken of the psychosocial team’s opinion regarding the high risk that the radical change in her daily living environment poses for the minor and, therefore, the possible appearance of stress factors.
In response, the sentence, for which the judge Salas Carceller is the rapporteur, states that “the interest of the minor does not necessarily coincide with her will, which, as in this case has been considered by the Court, may be conditioned by one of the parents to the detriment of the other”.
Therefore, the appealed judgment would not have been issued against this interest.
In this sense, the Public Prosecutor’s Office states that “by virtue of the extensive analysis of the evidence practiced, carried out in both instances, it can only be concluded that the best interests of the minor have been analyzed in a precise, exhaustive and correct manner, taking the decision to transfer the guardianship and custody of the minor from the mother to the father, in order to avoid damages that would be irreparable given the bad influence that the mother has on the minor and that can be reversed, being in the care of the father.
That is to say, in the decision to take the measure of guardianship and custody in favor of the father, the jurisprudential doctrine emanating from the First Chamber of the Supreme Court has been taken into account and applied”.
Determining factors of this “bad influence” are
For its part, the judgment of the Provincial Court provides ideas and reasoning that help to better understand the case now analyzed by the Supreme Court: “In conclusion, we are faced with a technical report that highlights, among other things, that the minor is severely influenced by the attitude of the parent who questions and criticizes the father figure in an absolute manner”.
This situation “affects her psycho-evolutionary development and can have serious consequences in her later life”. This technical opinion “is convergent with the result of the examination of the minor and the unusual, incomprehensible and unjustified purpose that the minor attributes to the father’s desire to obtain a change of custody regime”.
“The consequence, in convergence with that reported by the Public Prosecutor’s Office, can hardly be different from the confirmation of the appealed decision, since the course of time of the custody regime in favor of the mother has revealed (apart from the period of repeated contumacy in obstructing the visitation regime established in favor of the father) that the father’s desire to obtain a change in the custody regime has been unjustified; In this regard, the five convictions in misdemeanor trials referred to in an undisputed manner by the appealed judgment), the creation of highly negative cohabitational factors for the full psychological and emotional formation of the minor”.
These factors, “by way of substantial supervening circumstances, determine that it is in accordance with a specific and reasonable consideration of the best interests” of the minor “the change of custody regime adopted in the appealed decision, especially when it is done not in an abrupt manner, but by establishing a long period of adaptation converging with the duration of the school year”.
The final response of the Supreme Court, as we have already mentioned, is to agree with the Provincial Court and, therefore, with the father, in a sentence that represents a full endorsement of the protection of the interests of the minor in a complete sense. It is not, contrary to what may seem at first glance, to punish the mother for not complying with the visitation regime established for the father, but to protect the minor in a negative climate for her development, in which, jointly, situations are generated that affect her correct and normal personal development.
If you need help in a case related to family law and custody and guardianship, do not hesitate to contact me.
