Today we comment on a sentence in which a curious case that judges occasionally face is resolved: those cases in which the father rejects joint custody, while the mother considers it to be the best option.
We say that this is a curious case because usually the ‘battle’ is the opposite: the trend in recent decades has been to grant sole custody to the mother and, although this is changing over time, many fathers continue to fight in court to share time with their children equally.
What happens otherwise? Can the father set aside his responsibilities as a parent simply by alleging incompatibilities of schedule or lack of means to reconcile?
Is joint custody possible if the father does not want it?
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Is joint custody possible if the father does not want it?
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Thejudgment we are commenting on today deals with such a case and resolved forcing a father to exercise joint custody of his daughter, despite the fact that he had requested sole custody for the mother. Contrary to her request, the 1st Instance and Preliminary Investigation Court No. 1 of Leganés (in a judgment dated July 11, 2019) decided to grant the mother’s request, that requested a shared custody regime.
Her proposal was based on her intention to return to work: joint custody would allow her to return to work while maintaining the necessary work-life balance.
The judge’s answer is clear: he agrees to “attribute the guardianship and custody to both parents on a shared basis for alternating periods of weeks”, arguing that “in short, the father cannot refuse to exercise shared custody if the requirements justifying its establishment are met”.
The sentence also clarifies that, if the father “has difficulties in organizing and providing assistance to his daughter, he can seek the help of third parties and greater work flexibility”.
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Father’s argument: inability to care for his daughter due to his job
The arguments of the father, rejected by the judge, help us to understand what limits we must take into account when requesting one or another type of custody.
Thus, he justified the need to reject joint custody based on the“impossibility” of combining the care of his daughter with his work. His working day, he said, began before 6:30 a.m. and lasted until 3:00 p.m., and he had to travel 45 kilometers each way.
As for the possibility of having help, he assured that he lived with his mother but, due to her advanced age (70 years old), he considered it inadvisable to make her responsible for the care of the minor.
The judge, however, did not see sufficient grounds to justify that the father could delegate the care of his daughter:
“The difficulties that the establishment of joint custody would pose to the respondent if the work schedule he claims to have is maintained are not in doubt, but neither is the situation of [su expareja] and his job prospects. Both parents are in a similar family and economic situation: they have another child from a previous couple, live in separate homes and have a stable monthly income with little difference between them.
All this supports the convenience of the establishment of a shared custody despite the difficulties that the respondent parent may have in organizing and assisting his daughter, but suchassistance takes priority over any other issue. In this sense, it is possible that the help of third parties, the search for work flexibility, etc… may be necessary so that [su hija] can remain with both parents in an analogous way.
In this sense, there is no psychosocial report in the process that would lead us to understand otherwise.
Consequently, it is appropriate to establish the joint custody regime requested, accepting the arguments put forward by the Public Prosecutor’s Office in the period of conclusions, with the nuances that will be explained in the ruling of this resolution”.
What are the advantages of shared custody for the children?
Finally, the sentence includes a list of the advantages of shared custody over single-parent custody.
We reproduce them in this post because of their importance and interest:
a) The children are guaranteed the possibility of enjoying the presence of both parents, despite the breakup of the couple relationships, being such presence similar of both parental figures and constitutes the model of cohabitation that is closer to the way of living of the children during the couple cohabitation of their parents, so that the breakup is less traumatic; b)
b)it avoids certain negative feelings in the children, among which the following can be related: fear of abandonment; feeling of loyalty; feeling of guilt; feeling of denial; feeling of supplanting; etc…, c) it encourages a more open attitude of the children towards the couple; d) the children’s attitude towards the couple is more open to their parents.
c) a more open attitude of the children towards the separation of the parents is encouraged, which allows a greater acceptance of the new context and avoids situations of conscious or unconscious manipulation by the parents towards the children; d) the parents are guaranteed the possibility to continue exercising their rights and obligations inherent to parental authority or responsibility and to participate on equal terms in the development of the child’s development; e) a more open attitude of the children towards the separation of the parents is encouraged.
d) the parents are guaranteed the possibility to continue exercising their rights and obligations inherent to parental authority or responsibility and toparticipate on equal terms in the development and growth of their children, thus avoiding the feeling of loss that the parent feels when custody is attributed to the other parent and the demotivation that results when child support must be paid, thus achieving, in addition, a greater awareness of both in the need to contribute to the children’s expenses; e)
the suitability of either parent is not questioned; f) there is an equalization between the
f) there isequalization between both parents in terms of free time for their personal and professional lives, thus avoiding dependency dynamics in the relationship with the children, since sometimes the pain and emptiness caused by a separation tends to be compensated by the company of the child, who thus becomes the only reason for living of one parent; and g) the parents must necessarily cooperate, so that the system of shared custody favors the adoption of agreements, which in turn favors the adoption of agreements, which in turn favors the adoption of agreements, which in turn favors the adoption of agreements.
g) the parents must necessarily cooperate, so that the system of shared custodyfavors the adoption of agreements, which also becomes an educational model of conduct for the child”.
