The course of the case law of the Supreme Court on joint custody leads us to a generalization of the choice of this regime as preferred, provided that it is decided for the benefit of the child.
Since the first judgment in this sense was issued in 2013, there have been accumulating pronouncements in which this doctrine is clarified and nuanced, although in these cases each case presents many particularities that cause that there is no generalized solution.
Very recently we have learned of a new judgment of the High Court in which a system of shared custody and guardianship is established as the most desirable for the minor, without the search for personal confrontation between both spouses being in itself a cause for denial of the system of shared custody, as it harms the interests of the minor.
This is a judgment dated January 17, 2018, for which Judge Seijas Quintana is the rapporteur.
It resolves the appeal filed by the mother of a minor, who claimed exclusive custody and parental authority of the minor.
The appeal was based, among other things, on the existence of a restraining order against the minor and his mother, as a result of a criminal proceeding that was later dismissed.
On the other hand, the father’s defense claimed that, given the existence of this restraining order, the guardianship and custody should be attributed to the mother “for the time being”, but maintaining the shared parental authority of both parents, “since there is no reason to attribute it exclusively to the mother as she claims”.
A visitation regime for the father of two hours per week was also requested.
The judge of First Instance decided to grant the parental authority of the minor child to both parents, and to grant joint guardianship and custody of the minor child to both parents.
“Such system will have to be produced by means of weekly stays of the minor with each of the parents and in their homes”, taking place from Monday after leaving school until the Monday after entering school.
Furthermore, as stated in the court’s decision, “in order to favor the transition from the previous system of restriction or limitation of visits by the father to the now established system of shared custody, it is necessary and convenient to have a logical period of adaptation so that the child can progressively adapt to the new situation, which is why it is appropriate to establish a regime of visits and communication in favor of the father, which will be of a merely temporary nature, with a duration of two months, so that he can have his child in his company”.
Need for good relationship for joint custody
The Supreme Court’s decision specifically discusses the shared custody regime, which the mother asks to modify in order to opt for sole custody in her favor.
A violation of article 92.8 CC is alleged, as well as the doctrine of the Supreme Court which determines that the shared custody and guardianship entails as a premise “the need for a relationship of mutual respect between the parents that allows the adoption of skills and behaviors that benefit the child and that do not disturb their emotional development and that despite the effective rupture of the parents, a family frame of reference is maintained to support a harmonious growth of their responsibility”.
Furthermore, the mother’s defense considers that, in addition, there was a criminal proceeding against the father and that the relations between the parents are bad, which “makes the operation of this system of guardianship and custody unfeasible”.
However, the Supreme Court rejects the appeal of the sentence, assuring that the appealed sentence assesses the specific circumstances of the case, without its reasoning contradicting the Court’s doctrine.
To this is added the evaluation and diagnosis report of the program for the evaluation and treatment of minor victims of sexual violence in Cadiz, which the Public Prosecutor’s Office brings up in its report, in relation to the criminal proceedings dismissed and archived by the court, and to the specific facts that determined their initiation, “which have not even been evaluated in any of the instances, nor brought for their evaluation in the corresponding appeal, and to which not only no credibility is given to them, but an evident maternal direction is insinuated in the child’s statements”. On this fact, the Supreme Court assures that “the search for personal confrontation between both spouses cannot be in itself cause for denial of the shared guardianship system, as it harms the interest of the minor who needs the attention and care of both parents; a system that, as this Chamber has recalled, from the 257/2013 judgment, should be the normal and desirable one”. The judgment concludes by stating that what is intended is to bring this regime closer to the model of cohabitation existing prior to the marital breakdown and at the same time to guarantee their parents the possibility of continuing to exercise the rights and obligations inherent to parental authority or responsibility and to participate on equal terms in the development and growth of their children, which also seems to be the most beneficial for them. You may be interested in:
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