Custodia compartida

Joint custody and international couples in Spain: How does it work and when is it applied?

Nowadays there is a growing number of international couples, and that reality applies also to the European Union countries. Fortunately, marriages within the EU between people of different nationalities are governed by an extensive set of regulations in order to solve any conflicts of competence in terms of Family Law, such as the applicable laws in the event of a divorce or a separation and also regarding custody of children.

In a previous post, we talked about how to know which law applies to you divorce or separation. If the Spanish laws are applicable, here you can find all the information you need about joint custody in Spain. What is joint custody and how is it applied in our country?

Joint custody in Spain: What is it and how does it work?

In Spain there are basically two types of custody: sole custody and joint custody. The first is exercised only by one parent, while the other parent is awarded visitation rights. The goal is that the minor has contact with both parents because, in general, this contact is beneficial for the child. Anyhow, all measures adopted by the judge seek the protection of the child, so it is also possible, in very specific and extreme cases, that there are no visitation rights granted or even one parent loses all parental rights.

On the other side of the coin, there is joint custody, which in Spain must be applied as the preferred option (except when it does not benefit the minor). The precedent case law, since 2011, establishes that equal contact with both parents is, in principle, healthier for the children, allowing both parents to fulfill their roles as parents and as educators.

Despite being the general trend, the truth is that in Spain, traditionally, sole custody for the mother has been the most common choice. But little by little the situation is changing, and there are many court rulings that reflect this changing tendency.

Besides that, there are different ways of exercising joint custody (and, in reality, there can be as many ways as cases of separation or divorce, because every case has to end with specific and tailor made solutions). Normally, the judge will render one of these judgements:

  • Joint custody in the same residence, so both parents “move” there and the minor always stays in the family residence.
  • Joint custody in different residences, being the child the one that moves from one residence to another in each period.
  • Coexisting joint custody, when both parents live under the same roof.

Moreover, joint custody does not mean that both parents share the same amount of time in the exercise of legal custody. Sometimes, due to certain circumstances, the minor may spend more time with one of the parents, and we are still talking about joint custody.

Joint custody: how can you apply for it?

The document that contains all the measures that will regulate the divorce or the separation is called settlement agreement, and among its minimum content, we can find the choice of a custody regime. The parties can reach an agreement and submit a proposal for measures to the judge, who will validate it as long as it is legally valid. In the event of a disagreement, the judge will decide about this issue and about all the others that regulate the divorce or the separation. In both cases the assistance of a lawyer is required (in the first case, having reached an agreement, the couple can share the services of the same lawyer).

Furthermore, for some time now courts are requiring a more detailed way of presenting how custody will be exercised, having to provide a document that specify aspects such as the distribution of the holidays or of the significant dates or events (birthdays, etc.), the way in which the child should be moved from one parent to another, how the communications will be done, contact with the grandparents…This document is especially important in international marriages, mostly when one of the parties lives in another country (who pays for the travels, how the travels will work, whether the visitation days can be concentrated in case of sole custody or not, etc.).

There is a large body of case law about these cases, and the judges in Spain have a large scope of action to find creative solutions to each situation. Nonetheless, it will always be preferable that the parties reach an agreement, especially in these cases. In fact, the Civil Division of the Supreme Court establishes that, when an agreement beneficial for the minor cannot be reached, for the cases that entail long distance travels it will be necessary to weigh the specific circumstances of each case in order to adopt the best measures to protect the child’s interest.

If you have any doubt about a case of an international divorce or separation involving children, please contact with our lawyers. We will be pleased to help you.