The shared custody regime in Catalonia has its peculiarities with respect to the rest of Spain that should be known if you are facing a separation or divorce proceeding with children. The Civil Code of Catalonia is responsible for these peculiarities, since this legal text is applicable to marriages with roots in this autonomous region, thus displacing the Civil Code that applies to practically all of the rest of Spain.
The good news is that, in family matters, the regulations of the Catalan community are a step ahead of the rest of the country, being more progressive and tending towards a more modern concept of couple.
Even so, the jurisprudence throughout Spain is already tending towards shared custody.
To keep you informed, in this post we explain what the Civil Code of Catalonia says and what are the differences with the situation in the rest of Spain. If you need help in a case of separation or divorce with children in Catalonia, you can consult with me.
What is joint custody in Catalonia and how does it differ from single-parent custody?
Let’s start at the beginning: although it may seem obvious, it is important to distinguish between the concepts of shared custody and single-parent custody in Catalonia.
The latter consists of granting custody (i.e. the care of the child, including his or her welfare and usual cohabitation) to only one of the parents, who will be the custodial parent.
For the other party a visiting right is generated, which will be greater or lesser depending on the circumstances of each case.
Traditionally in Spain -also in Catalonia- single-parent custody has been chosen in favor of the mother, although the situation has changed radically since 2011.
The other side of the coin (and the current trend throughout Spain) is joint custody, which consists of sharing more or less equally the exercise of custody between both parents.
At present, the doctrine of the Supreme Court -which binds judges throughout Spain- leads to grant it as a general formula, provided that it does not go against the interests of the child as the cornerstone of any custody procedure.
But the regulations are disparate and the Civil Code of Catalonia goes beyond what is -still- required by the Spanish Civil Code.
Shared custody in Catalonia vs.
Shared Custody in the rest of Spain
Let’s start with the situation in Spain:
- The Spanish Civil Code has traditionally opted for single-parent custody, which for years was granted exclusively to the mother, until it was declared in 1990 that this entailed gender discrimination.
However, it continued to be granted to mothers in an extremely large majority. - In 2005 a new reform of the Civil Code was carried out, which gives us the current wording of the rule.
With it, the door was opened to shared custody, although not in a categorical or “preferred” way over single-parent custody. - However, the Supreme Court has gone a step further in its interpretation of this rule and established in 2011 that joint custody should be the general solution in matters of custody and guardianship, provided that it benefits the child.
Rulings throughout Spain are increasingly tending to grant joint custody as long as nothing prevents it. - A reform of the Civil Code is currently pending to reflect what is already being applied by case law.
However, this reform has not materialized.
In short, as of today, Article 92 of the Spanish 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 totally or partially by one of the spouses”, so that priority is not given, at least formally, to shared 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.
What are the requirements for joint custody in Catalonia?
While the Spanish Civil Code is somewhat outdated with respect to the jurisprudence that applies throughout Spain, the Catalan Civil Code is clearer in showing its preference for shared custody.
The Catalan Parliament approved, in the summer of 2010, Book II of the Catalan Civil Code, called “Of the person and the family”, in which the term shared custody is changed to that of shared parental responsibility.
With this reform, the Catalan law gives priority to the agreement between the parents through the so-called parentality plan.
And it goes further: in its article 233.8 it ensures that, in the cases of breakup of cohabitation, the responsibilities that the parents have towards their children will not be altered, so that these maintain the shared character and, as far as possible, must be exercised jointly.
In addition, Article 233.10 establishes that each of the parents will present a parenting plan in which they must specify how they intend to exercise their responsibilities towards the children, plans that the judge will try to reconcile.
The judicial authority, if there is no agreement or if the agreement has not been approved, must determine the manner of exercising the guardianship, keeping in mind the “joint nature of the parental responsibilities”.
However, “the judicial authority may order that the guardianship be exercised individually, if it is in the best interest of the child” (233.10).
Likewise, in article 233.11 of the Catalan Civil Code there are a series of criteria and circumstances to be taken into account for the criteria and circumstances to be taken into account to determine the custody regime..
They are the following:
- The emotional bond between the children and each of the parents, as well as the relationships with the other people living in the respective households.
- The ability of the parents to ensure the welfare of their children and the possibility of providing them with a suitable environment, in accordance with their age.
- The attitude of each parent to cooperate with the other in order to ensure maximum stability for the children, especially to adequately guarantee the children’s relations with both parents.
- The time that each of the parents had dedicated to the care of the children before the breakup and the tasks they actually performed to provide for their children’s welfare.
- The opinion expressed by the children.
- The agreements in anticipation of the rupture or adopted outside of the agreement before the initiation of the proceeding.
- The location of the parents’ homes, and the schedules and activities of the children and the parents.
Currently, most of the autonomous communities are governed by the Spanish Civil Code, i.e., by the Common Civil Code.
Only the communities of Aragón, Cataluña, Navarra and Comunidad Valenciana have autonomous regulations referring to guardianship and custody, through their civil laws. Consult with me your doubts about shared custody in Catalonia and/or the rest of Spain.
