Shared custody has become one of the topics that generates more queries and doubts in Family Law, something understandable considering that the jurisprudence around this form of exercising custody and guardianship continues to increase. In addition, Spain has undergone major changes in custody matters in recent decades: from a system in which single-parent custody was the general rule (almost always in favor of the mother), we find ourselves with a new scenario, where joint custody should be, according to our Supreme Court, the “default” option.
However, reality shows us that single-parent custody is still statistically more frequent, although this trend is changing little by little.
What is the reason for this?
There are many possible interpretations, but what seems clear is that there is still a long way to go in the normalization of shared custody.
Therefore, with this guide on shared custody we intend to shed light and summarize the current situation of this formula in Spain.
We also summarize what criteria judges use to grant joint custodyWe also highlight some curious cases and answer specific doubts that often arise in these processes. We base ourselves on our own experience, and also on the experience of countless judgments handed down every day in our country, in which the terms in which one type of custody or another should be granted are gradually clarified. Index
What is guardianship and custody? - What is joint custody and what are its types?
- From single-parent custody to joint custody
How does joint custody materialize in the event of separation or divorce? - What criteria do judges follow to grant joint custody?
- What are the advantages of shared custody?
- Frequently asked questions about joint custody
What is guardianship and custody?
Differences with parental authority
The first thing to do is to distinguish between two concepts that are often confused but do not have the same meaning at all, although they are related: guardianship and custody, on the one hand, and parental authority, on the other. Custody and guardianship refers to the determination of who the child will live with on a regular basis in the event of separation or divorce.
It can be exercised by both parents or by one parent only, who will have a right of access to the child.
A right that, rather than belonging to that parent, belongs to the child, who should have the opportunity to interact with both parents, provided that this is advisable for his or her development. The parental authority refers to a right-duty of the parents of the minor, related to the representation and care of the children: food, clothing, housing, education, health… Normally the parental authority is attributed to the parents of the unemancipated minor and can be extended beyond the age of majority.
Only in extreme cases, a parent (or both) may lose parental authority over their children.
It should be borne in mind that the exercise of parental authority involves a series of specific duties set out in the law.
It must always be exercised for the benefit of the children and imposes on the parents, among other duties, the obligation to be with them, take care of them, protect them, feed them, educate them, provide them with an integral formation, legally represent them and administer their property.
In addition, parents may be deprived of parental authority when they fail to comply with the duties deriving therefrom, always by judicial decision.
Parents may also be deprived or suspended from the exercise of parental authority when their conduct endangers the training of minors or incapable persons or when they are treated with excessive harshness, which implies not only severe physical punishment but all kinds of acts involving cruelty or abuse of authority.
On the other hand, the parents may be reinstated in the parental authority if they can prove that the circumstances that led to their deprivation no longer exist.
In any case, it is necessary to know that the jurisprudential criterion on the suspension or deprivation of parental authority is restrictive, stating that such a serious measure must be adopted as a precautionary measure and always in clear and serious cases of breach of the inherent duties.
What is joint custody and what are its types?
Having clarified the concept of guardianship and custody, and before going into the differences between single-parent custody and joint custody, we must emphasize that, when we talk about guardianship and custody, the main objective is always and in any case to protect the best interests of the child.
The search for the ideal solution for each case revolves around this concept, so that, although joint custody is now the formula that should be applied as a priority, this does not exclude at all to opt for single-parent custody when circumstances so require.
Beyond that, in a climate of normal cohabitation with both parents, what should be the solution preferred by the judges?
Is it preferable for the child to spend the same amount of time with both parents or should the child be given greater stability in a single home? The two most common custody formulas are shared custody and single-parent custody.
Single-parent custody or sole custody consists of granting custody (the care of the child, including its education, welfare and usual cohabitation) to only one parent, who will be the custodial parent.
The other parent will have visitation rights, which will be greater or lesser depending on the circumstances of each case. Traditionally, Spain has opted for single-parent custody 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 shared custody, which consists of dividing more or less equally the exercise of custody between both parents.
Nowadays, the doctrine of the Supreme Court -which binds judges all over Spain- leads to grant it as a general formula, as long as it does not go against the interests of the minor as the cornerstone of any custody procedure.
On the other hand, there are different ways of exercising joint custody (and, in fact, there can be as many as there are cases of separation or divorce, since each case must generate a particular and tailored solution).
Normally the judge will opt for one of these ways:
- Shared custody in the same domicile, so that the parents are the ones who ‘move’ to it and the child always remains in the family home.
- Shared custody in different homes, with the child moving from one to the other in each period.
- Coexisting shared custody, when both parents live under the same roof.
In addition, the fact that custody is shared does not mean that both parties have the same amount of time of custody.
Sometimes, due to certain circumstances, the child may spend more time with one parent than with the other, without ceasing to move in the field of joint custody.
Finally, there are two other possibilities, clearly in the minority.
On the one hand, we find split or distributive custody, which consists in that, when there is more than one child, there is a ‘distribution’ of them between the parents, each one having the custody of the corresponding child.
It must be taken into account that normally the judge will choose not to separate the siblings, but in any case it is an existing and advisable way in certain cases (remember that flexibility is key in custody cases).
The last type is the guardianship and custody attributed to a third party: this occurs when neither of the parents can access the custody of the children.
For example, in case of death or incapacity.
From single-parent custody to joint custody
As we mentioned in the introduction to this article, in recent decades we have experienced important regulatory and jurisprudential changes in custody matters in Spain.
Thus, before the reform brought about by Law 15/2005, July 8, 2005, the law regulating custody and guardianship in Spain was Law 30/1981, July 7, 1981, which modified the regulation of marriage in the Civil Code and determined the procedure to be followed in cases of annulment, separation and divorce. The model established by the 1981 regulation was single-parent custody, although this did not mean a prohibition of shared custody.
However, its application was very residual.
It is important to note that the wording of Article 92 of the Civil Code as it stood at that time did not rule out the possibility of applying such a regime.
With this starting point, it is a judgment of the Supreme Court that marks an important turning point that would later lead to a legislative change.
It is a judgment of July 7, 2011, which established shared custody as the optimal generalized solution, always preferable to granting it exclusively to one of the spouses.
All this, we insist, provided that such a decision operates for the benefit of the child, which is the main objective that judges must attend to when they encounter a case of this type.
In this sense, the Supreme Court has assured that:
What is important to guarantee or protect with this procedure is the interest of the minor, who, although it is true that he/she has the right to relate to both parents, this will occur as long as his/her fundamental rights to physical and psychological integrity, freedom, education, privacy… Hence all the requirements established in art. 92 CC have to be interpreted with this sole purpose.
Hence, the relations between the spouses alone are neither relevant nor irrelevant to determine joint custody and guardianship.
They only become relevant when they affect, to the detriment of the child’s interest.
The Court made it clear that shared custody should be considered the most appropriate to the legal regulation established in Article 92 of the Civil Code.
And even based that this regime is the most advisable because it allows the effectiveness of the right that children have to relate to both parents, even in crisis situations, whenever possible.
In a judgment of October 30, 2014, the Civil Chamber further stated the following:
Shared custody entails as a premise the need for a relationship of mutual respect to exist between the parents that allows the adoption of attitudes and behaviors that benefit the minor, that do not disturb his emotional development and that, despite the affective rupture of his parents, he is kept in a family frame of reference that sustains a harmonious growth of his personality.
How does joint custody materialize in case of separation or divorce?
The regulatory agreement
Evidently, when we face a divorce or separation, it is necessary to adopt a series of measures that establish how the life of the couple will develop when it ceases to be a couple, including, of course, the children and the exercise of their custody and guardianship. These measures are set out in a document called a regulatory agreement, whose regulation appears in the Civil Code.
The regulatory agreement in case of shared custody will necessarily contain a series of aspects on the exercise of the custody and guardianship by both parents.
But, what exactly is the regulatory agreement? It is a document that contains the agreements reached by both parties of the couple regarding the patrimonial and personal aspects of the marriage.
It is about regulating the breakup and establishing its conditions, both in order to “liquidate” the marriage and in terms of those links that will survive it, such as, if applicable, the exercise of the custody or the establishment of a pension in favor of one of the parties. This document operates when there is an agreement between the parties, that is to say, when we process a divorce or separation by mutual agreement.
Whenever possible, it is preferable to opt for an amicable process: otherwise, the final decision will remain in the hands of the judge, so we will lose control over the final decision.
At a regulatory level, the characteristics of the regulatory agreement are included in the Spanish Civil Code, including its minimum content, which is included in the current article 90 of the Civil Code, modified in 2015 by the Law on Voluntary Jurisdiction.
1. The regulatory agreement referred to in Articles 81, 82, 83, 86 and 87 shall contain, at least and whenever applicable, the following points: a) The care of the children subject to the parental authority of both parents, the exercise of parental authority and, if applicable, the regime of communication and stay of the children with the parent who does not habitually live with them. b) If it is considered necessary, the regime of visits and communication of the grandchildren with their grandparents, taking into account, always, the interest of those.
c) The attribution of the use of the home and family trousseau.
d) The contribution to the burdens of the marriage and alimony, as well as its bases of update and guarantees in its case.
e) The liquidation, when appropriate, of the economic regime of the marriage.
f) The pension that according to article 97 corresponds to satisfy, in its case, to one of the spouses.
It should be noted that there was an attempt to modify the minimum content of the regulatory agreement contained in Article 90 of the State Civil Code (CC).
In 2013, the preliminary draft bill on the exercise of parental co-responsibility was published, which proposed the modification of this important article of the CC in the sense of expanding the minimum content of the regulatory agreement for separation or divorce.
This is the text that was tried to be approved:
1. The regulatory agreement referred to in Articles 81 and 86 must contain, at least, the following extremes: a) The plan of exercise of the joint parental authority, as parental co-responsibility, with respect to the children, if any, including the agreements on: 1. The form of sharing all the decisions that affect the education, health, well-being, habitual residence and other relevant matters for the children.
2 º The fulfillment of the duties relating to the guardianship and custody, care, education and leisure of the same.
3º The periods of cohabitation with each parent and the correlative regime of stay, relation and communication with the not cohabiting one.
4º The place or places of residence of the children, determining which one will appear for the purposes of census registration.
5.º The rules of collection and delivery of the children in the changes of the guardianship and custody, or in the exercise of the regime of stay, relation and communication with them”.
[…]
However, this reform did not materialize, so it may seem that in common law there is no obligation to submit a plan for the exercise of custody and guardianship.
However, the Supreme Court, through its jurisprudence, has been in charge of introducing it.
How is the regulatory agreement defined in the case of shared custody?
The Supreme Court itself has declared the obligatory nature of presenting a ‘contradictory plan’ in the specific case of opting for shared custody of minors.
This is established in a judgment of the Supreme Court of March 3, 2016,(Appeal No. 523/2015, rapporteur José Antonio Seijas Quintana), which refers to the obligation to submit this plan, which specifies the form and content of the exercise of joint custody (whether it has been requested by mutual agreement or at the request of only one of the parents).
This plan is given so much importance that its absence would result in denying joint custody, since it would place the child “in a situation of real uncertainty about their care and schooling”.
The obligation of the parents is not only to be interested in this system of custody, under the principle of contradiction, but to specify the form and content of its exercise through a contradictory plan adjusted to the needs and availability of the parties involved that integrates with facts and evidence the different criteria and the advantages that it will have for the children once the crisis of the couple has occurred, which is not only related to the permanence or not of the children in a stable home, but with other aspects referred to the decision making about their education, health and care; duties referring to the guardianship and custody, periods of cohabitation with each parent; relationship and communication with them and regime of relations with their siblings, grandparents or other relatives and close persons, some of them closer to the care of the children than the parents themselves; all this on the basis of what this Court has repeatedly stated about the previous practice of the parents in their relations with the minor and their personal aptitudes; the wishes expressed by the competent minors; the number of children; the fulfillment by the parents of their duties in relation to the children and the mutual respect in their personal relations, with the precision – STS 22 July 2011 – that the relations between the spouses alone are neither relevant nor irrelevant to determine shared custody and guardianship.
They only become relevant when they affect, to the detriment of the minor’s interest.
Another relevant judgment of the Supreme Court regarding the need to establish a contradictory plan is the one issued on May 9, 2017, which establishes that, in order to modify a well-functioning custody situation, whoever requests shared custody must specify the form and content of its exercise through a contradictory plan adjusted to the needs and availability of the parties, which integrates the different criteria and the advantages that it is going to have for the child.
It defines them as the following:
- Housing
- Education, health and care decision making
- Guardianship duties
- Periods of coexistence with each
- Communications and relationships with the parents, as well as with their relatives and close friends, especially when some of them contribute to the care of the children.
- The contribution and form of payment of child support, as well as extraordinary expenses.
It is also necessary to include the manner in which the transfers of the minor to the school center are to be carried out, especially, as stated in the aforementioned judgment of the Supreme Court of March 3, 2016, when one of the parents resides far from the city where the daughter is attending school.
Finally, it should be noted that, in contentious separation or divorce proceedings (i.e., in which there is no agreement between the parties about the measures to be adopted to close the divorce), it will be the judge (and not the parties) who will adopt all those decisions regarding the custody of the common children (and all other aspects of the divorce or separation), including all the points described above.
The parties may appeal this decision; they may also reach an agreement at any time during the process, before a judgment is rendered.
What criteria do judges follow to grant joint custody?
We already know that since 2011 joint custody is considered the “normal” solution in case of separation or divorce, above single-parent custody, as long as it is in favor of protecting the best interests of the child, who is always at the center of the custody process.
It is important to keep in mind that, despite what the Supreme Court has said, single-parent custody -usually in favor of the mother- is still the most common solution.
One possible reading is that many judges are still anchored in this way because it is the “traditional” one.
However, another possibility is that the division of tasks in the upbringing of the children is not equal in many couples and, therefore, the judge chooses the person who effectively takes care of the child to a greater extent when deciding on custody.
Therefore, our role as parents is key to opt for joint custody.
It is true that the Supreme Court states that “it is often forgotten that the wording of Article 92 does not allow us to conclude that [la custodia compartida] is an exceptional measure, but that, on the contrary, it should be considered normal and even desirable, because it allows the children’s right to relate to both parents to be effective, even in crisis situations, provided that this is possible and as long as it is possible”.
However, in practice, this is not always possible.
Therefore, here we summarize some keys to understand what judges value when opting for one or another type of custody:
- Have participated in the routines of minors since birth, such as taking them to and picking them up from school, being part of WhatsApp groups or similar at school, going to doctor’s visits, going to tutorials with teachers….
- Ease of reconciling work and personal life: in particular, the working hours of the last two years, availability, reduced working hours, the possibility of teleworking, etc., will be taken into account.
- The geographical proximity of the residences and the school: in particular, the fact that the parents’ homes are located in the same municipality and/or neighborhood is an aspect that judges take into special consideration, so as not to disrupt the child’s daily routine.
- That the parents’ educational systems or guidelines are similar: differences in this regard may unbalance the child.
- The existence of family support: it is positively valued to be able to count on the grandparents of the minors, having to prove their age, where they live, their personal and working condition, their state of health…
- The relationship between the parents: it is not relevant by itself to determine shared custody, but it is relevant when this relationship affects the child and harms him/her.
- The result of the report of the psychosocial team of the courts: parents and minors are interviewed to observe how they interact with each other.
- The age of the children and the number of children: in general, there is a tendency not to separate siblings.
- The wishes of minors: this will be taken into account in any case in those over 12 years of age.
Finally, it is important to remember that, in Family Law cases, there are no universal formulas: each case is different, as is each family, and the circumstances of each family nucleus change over time. It is possible that a judge may not grant joint custody at a given moment but will do so in the future, and vice versa.
In addition, case law is increasingly tending to review and modify the conditions of the exercise of custody when necessary, taking into account the opinion of the child.
Therefore, it is important to follow the advice of our lawyer and, above all, to take the best possible care of the interests of our children since, at the end of the day, the main objective should always be their welfare and full development.
What are the advantages of shared custody?
The judges summarize them as follows:
- The children are guaranteed the possibility of enjoying the presence of both parents, despite the breakup of the couple’s relationship, being such presence similar for both parental figures and constitutes the model of cohabitation that is closest to the way of living of the children during their parents’ cohabitation as a couple, making the breakup less traumatic;
- certain negative feelings in minors are avoided, among which the following can be related: fear of abandonment; feeling of loyalty; feeling of guilt; feeling of denial; feeling of impersonation; etc….,
- The children’s more open attitude towards the separation from their 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;
- The parents are guaranteed the possibility of continuing to exercise their rights and obligations inherent to parental authority or responsibility and to participate 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 alimony must be paid, thus achieving, in addition, a greater awareness of both in the need to contribute to the expenses of the children;
- the suitability of either parent is not in question;
- there is equalization 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 with the company of the son or daughter, who thus becomes the only reason for a parent to live; and
- The parents must necessarily cooperate, so that the system of shared care favors the adoption of agreements, which also becomes an educational model of conduct for the child.
Frequent questions
Before concluding this Guide on shared custody, we would like to dedicate a last section to some of the most frequent doubts among our clients.
Is child support compatible with joint custody?
The answer is yes, although it will have to be considered on a case-by-case basis.
It is possible to grant it when there is a great imbalance between the incomes of both spouses, or when one of them has no income at all.or when one of them does not have any income.
The Supreme Court, in a judgment of February 11, 2016, assured the following:
Shared custody does not exempt from the payment of alimony when there is disproportion between the incomes of both spouses, or as in this case, when the parent does not receive any salary or income (art. 146 C. Civil), since the amount of alimony will be proportional to the needs of the one who receives it, but also to the wealth or means of the one who gives it.
Moreover, the criterion for termination of alimony is the same as in the case of single-parent custody.
Therefore, it is not true that obtaining joint custody means ‘getting rid’ of child support.
It will be necessary to take into account each specific case and the existing balance between both parts of the couple.
How are the expenses generated by the children shared?
In general, these will be divided 50/50, provided that the parents have a similar economic capacity and the time spent with each of them is similar.
The maintenance will correspond to each parent during the time of stay with the child, and the common expenses (school, school supplies…) will be paid in half.
However, in case of differences in income, the distribution can be made in proportion to the economic capacity of each parent so that their effort is equivalent.
Can custody be lost for leaving the child in the care of the grandparents?
Yes, it is possible.
For example, a judgment issued by the Provincial Court of La Coruña, dated February 7, 2019, ensures that the parental functions that correspond to the father are mandatory, not being able to be exempted by considering that the minor is well cared for by the grandparents.
In the case of this judgment, it was decided to grant sole custody to the mother of a minor, the latter having alleged that her ex-husband left the paternal grandparents in the care of their child.
This criterion was already upheld by the first instance judgment, which upheld the claim for modification of measures filed by the mother and agreed to grant her custody of the child. Specifically, the ruling states the following:
(…) it is one thing that in specific cases he may be obliged to ask for help from the grandparents of the minor for his care, but not that they are the ones who take care and are directly in charge of his grandchild, since the functions that correspond to the father are mandatory and he cannot exempt himself from his obligations because he considers that the minor is well cared for by the grandparents, which is not in doubt, but it is he who as father must comply with his obligations and in the present case he does not do so; This circumstance is also corroborated by the witness evidence and the report issued by the psychosocial team (…).).
Is joint custody possible even if the former spouses do not get along well?
The answer may be affirmative.
The Supreme Court, in a judgment dated January 17, 2018, assured that “the search for personal confrontation between both spouses cannot in itself be a cause for denial of the shared custody system, insofar 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, as of judgment 257/2013, should be the normal and desirable one”.
Of course, the Supreme Court has also stated 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 do not disturb their emotional development and that despite the effective rupture of the parents, a family frame of reference that supports a harmonious growth of their responsibility is maintained”.
As it always happens in Family Law cases, it will depend on the specific case, but a bad relationship is not synonymous of automatic refusal to this type of custody.
Much less if that enmity is provoked to achieve a single-parent custody.
What is the value of the will of the children in order to modify the custody regime?
The opinion of the children has an increasing weight in these processes.
In this sense, the Supreme Court has stated that, among the criteria to be taken into account when deciding on the custody of common children, are “the wishes expressed by the minors and the result of the legally required reports, in addition to any other criteria that allow the minors an adequate life in a cohabitation that must necessarily be more complex than the one carried out when the parents live together”.
It is also important to take into account the legislative changes that have been taking place in recent years.
Law 15/2015, of July 2, on Voluntary Jurisdiction, first final provision, section 23, introduced an important reform of Article 90 of the Civil Code (CC), by which the new needs of the children, and not only the change of circumstances of the parents, may be taken into account when modifying the custody regime as it was designed with the divorce or separation.
This new ground for modifying the divorce measures had already been applied, however, in many judgments, which took into account -and gave preeminence- to the interests of the minor in the analysis of the issues related to their protection, custody and guardianship, “considering that the new needs of the children will not have to be supported by a substantial change, but a certain one”, as the Supreme Court recalls in the judgment we are commenting on.
Otherwise, as stated by the Supreme Court, it would be “practically unfeasible to change the established measures, with evident marginalization in its motivation of the interest and benefit of the minor in the interested change of custody”.
Changes such as the age of the minor, her new desires… can be assessed in the face of a change in the custody system, avoiding that what has been adopted becomes petrified in time.
Is joint custody possible if one of the parents does not want it?
There are sentences that assure that yes.
For example, there is a recent case resolved by the Court of First Instance of Leganés, in which the father rejected joint custody, while the mother considered it to be the best option.
The mother was seeking to return to work (something unlikely with a single-parent custody in her favor) and the father claimed not to have time to exercise even joint custody due to his work.
The judgment was clear: it was agreed “to award joint custody to both parents for alternating periods of weeks”, arguing that “in short, the father cannot refuse to exercise joint 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”.
