The General Council of the Judiciary (CGPJ) has just approved its criteria for deciding on the custody of children in case of breakup of the couple: through the Guide of criteria for judicial action to decide on the custody of children after marital breakdown, a publication promoted by the Equality Commission, lawyers and judges have a new tool on which to rely to determine the appropriate model of custody and guardianship for each case.
That is why in this post we want to talk about its most important points: so that you know what criteria will be followed by judges in this regard and what you can expect in case you go through a divorce or separation with children.
One of its big headlines is that this Guide calls for an urgent legal reform of shared custody and a better connection between criminal and family courts to ensure the protection of minors .
Criteria for child custody decisions
Its objective is to provide members of the Judiciary with a practical tool for the adoption of decisions regarding the custody of children in separation, divorce or breakup of the couple.
The text calls for, among other issues, an urgent reform of the legislation in order to clearly regulate shared custody; the specialization in family matters of judicial bodies in first and second instance and the improvement of communication between family courts and criminal courtsto ensure the safety of minors in cases of domestic or gender violence.
The work, promoted by the Equality Commission, has been carried out by a multidisciplinary group of experts in family law from the judiciary, the Prosecutor’s Office, the specialized legal profession and the institutes of legal and forensic medicine, and has been coordinated by the members of the Equality Commission Clara Martínez de Careaga, who chairs it, Gerardo Martínez Tristán and Concepción Sáez, and by the member of the Permanent Commission Álvaro Cuesta Martínez.
The Guide, which is more than 400 pages long, is based on a thorough examination of the case law on custody in general and shared custody in particular.
For this purpose, it has analyzed separately the Supreme Court jurisprudence (from the first rulings on joint custody, handed down in 2009, to those of 2019); the case law emanating from 103 judgments handed down by the High Courts of Justice of those Autonomous Communities with their own foral civil law in family matters (Aragon, Catalonia, Basque Country and Navarra); and the case law of the provincial courts of Albacete, Barcelona, Cáceres, Coruña, Granada, Balearic Islands, Madrid, Malaga, Murcia, Navarra, Santa Cruz de Tenerife, Seville, Valladolid, Valencia, Vizcaya and Zaragoza, from which a total of 616 judgments handed down in 2018 in family proceedings in which shared custody was claimed or debated.
This detailed study provides a complete picture of the judicial response in relation to custody – in particular joint custody – in custody separation proceedings at all judicial levels and in the different territories.
It also calls for certain reforms in the area of custody and guardianship, including establishing the obligation for the parties in a family proceeding to provide a parentality plan that regulates in a concrete and precise manner the way in which the parents propose to organize the care and attention of their children; alleviating the existing legal vacuum in relation to the enforcement of family judgments with a clear and complete regulation of this complex matter, as well as shortening the processing times of family proceedings.
Criteria for the adoption of the custody model
When establishing the criteria that judges must evaluate, the Guide starts from two basic premises:
- Shared custody should not be understood as an arithmetic distribution of the time the children spend with each parent, but as an effective exercise of responsible co-parenting. The objective is not to divide the time equally, but to equalize the dedication to the children in terms of time and effort, and to create an emotional bond that allows the children to maintain both the maternal and paternal reference.
- No custodial model is better or worse than any other by nature. The custody regime must be determined in each specific case after a detailed examination of the specific and particular circumstances of each family group and exclusively based on these particular circumstances.
In any case, it is necessary to avoid generalist or stereotyped positions on the different custody models.
Based on these two basic considerations, the Guide gives a series of recommendations to judges who must decide on the custody modality.
These include the need to to give the hearing of children the relevance that is recognized in domestic legislation and international treaties; of to banish previous personal positions on “the best model” of custodyThe court should try to ascertain the motives underlying the parties’ requests for custody, discarding those that are not strictly related to the care and attention of the children, or assess the attitude of each parent in assuming his/her responsibilities, his/her willingness to reach agreements with the other parent regarding the children and his/her capacity to keep the children out of the couple’s conflict.
Custody in situations of gender-based or domestic violence
The Guide includes a specific chapter dedicated to custody in those cases in which situations of violence against women or children have occurred. After analyzing both the regulations and case law on the subject, the text appeals to the urgent need to improve coordination and the information exchange system between the judicial bodies that handle civil proceedings for separation, divorce or breakup of the couple in cases of gender violence and those that handle criminal proceedings.
The disconnection that currently exists between the two judicial bodies, according to the Guide, means that in the civil case (in which the breakup of the couple is resolved) there is usually no record of what is happening in the criminal case and vice versa. Consequently, the resolutions issued in the civil family proceedings are incomplete without the information on the progress of the criminal proceedings, which is essential to adapt the measures relating to the custody of the children and to avoid situations that increase the risk.
Likewise, the dismissal of the criminal case or its termination by acquittal should be known in the civil sphere, in order to be able to adapt the measures of this nature that have already been adopted provisionally to the new situation.
The Guide also contains a series of specific criteria to be taken into account when deciding on guardianship and custody when situations of violence have occurred within the family. These criteria include the following:
- The priority is always the child’s best interest, so all decisions must be made in accordance with the circumstances of each specific case.
- A situation of high conflict in the couple should not be confused with situations that can be classified as gender violence or family violence.
- According to the evolution of the jurisprudence of our Supreme Court, the mere existence of a complaint of gender violence is not sufficient to deny the possibility of shared guardianship.
- It is important to verify the existence in the parents of a real capacity to establish reasonable communication between them, since joint custody requires a more fluid communication than individual custody.
- If there is a situation of structural violence, shared guardianship will be excluded even if there is no final criminal conviction.
- If the minor has witnessed the alleged facts, there is no reasonable justification for establishing or maintaining shared guardianship, since there has been an attack on his moral integrity and the development of his personality.
- The granting of a protection order following a complaint must also exclude the possibility of granting shared or sole custody in favor of the person under investigation.
- Hearing the children before the decision is made remains essential, as it is a right recognized by both international and domestic law.
In any case, the study of the sentences has led to the conclusion that it is preferable to examine and decide on a case-by-case basis. It is important that the decisions take into account the age of the children and that the expert reports made in both the civil and criminal cases are taken into account.
Visitation in cases of violence
Another of the essential issues that the judicial body must face in a possible situation of gender violence or domestic violence is the following whether to suspend or maintain the visitation regime and, in the latter case, to establish measures of restriction or control. Among the criteria proposed in the Guide for resolving this issue are the seriousness and repetition of the alleged acts; whether the minors have been used as an instrument for exercising dominion and violence over the woman; the presence or not of the children in the events under investigation; the father’s relationship with the children; and the opinion of the son or daughter.
When restrictions on communications with the children have to be decreed due to indications of violence, control and follow-up measures must be adopted after the sentence has been handed down.
At this point, the Family Meeting Points become important, regarding which the Guide points out that they must exist in sufficient number and be provided with the necessary personal and material means. If you are facing a divorce or separation process with children or you want to review the custody and guardianship regime applied in your regulatory agreement, consult our family lawyers: we will be happy to advise you.
