Post Custodia compartida en caso de separación o divorcio

Joint custody in case of separation or divorce: How to obtain it?

The law is changing: norms and regulations adapt to new circumstances of society as the concept of justice and injustice evolves. Thus, if a few years ago, the general solution in the case of separation or divorce was single-parent custody (normally granted to the mother), little by little, the laws and customs have been modified to reach a point where joint custody is already the preferred solution. Today, we will analyze the evolution of the types of custody and will tell you how to obtain joint custody. This is undoubtedly one of the issues that have generated the most debate in recent years in terms of Family Law.

The starting point is always, and in any case, to protect the interests of the child. The search for the ideal solution to the case will turn around this concept, and thus, although shared custody is now the formula that should be applied as a priority, it doesn’t exclude the option of single-parent custody if circumstances require it. Beyond that, in the case of peaceful coexistence with both parents, what should be the best solution? Is it preferable for the child to spend an equal amount of time with each of the parents or should the judge decide for a greater stability in a single home?

From single-parent custody to joint custody

Before the reform produced by the Law 15/2005, July 8, the norm that regulated child care and custody in Spain was established by the Law 30/1981, July 7. According to the new law, the regulation of the marriage in the Civil Code is modified and a new procedure to follow in the causes of nullity, separation and divorce is determined. The model that the 1981 norm established was single-parent custody, although this didn’t mean a prohibition of joint custody. Of course, its application was very residual. It is important to emphasize that the wording of Article 92 of the Civil Code, as it was at that time, didn’t rule out the possibility of applying the regulation mentioned above.

Said this, it was a sentence of the Supreme Court that marked an important turning point that would later lead to a legislative change. The sentence of July 7, 2011, established shared custody as a generalized optimal solution, always preferable to granting it exclusively to one of the spouses. All this, I’ll repeat, as long as such decision works in the benefit of the minor, which is the main objective the judges must consider when they encounter a case of this type. In this sense, the Supreme Court has ensured that:

“What is important to ensure or protect with this procedure is the interest of the child, that although it is true that they have the right to interact with both parents, this will occur as long as their fundamental rights to physical and psychological integrity, freedom, education and privacy are not adversely affected… Thus, all the requirements established in art. 92 of the Civil Code must be interpreted with this sole purpose. Hence, relationships between spouses alone are not relevant or irrelevant when determining shared child care and custody. These only become relevant when they negatively affect the interest of the child”.

The Court made it clear that joint custody should be considered the most appropriate legal regulation established in Article 92 of the Civil Code. And even substantiated that this regime is the most advisable, because it allows the effectiveness of the right that children have to interact with both parents, even in crisis situations, whenever possible.

In the sentence of October 30, 2014, the Civil Chamber also stated that “shared custody implies as a premise the need for parents to have a relationship of mutual respect that would allow the adoption of an appropriate attitude and behaviour that benefit the child, that wouldn’t disturb their emotional development, and that, in spite of the sentimental break-up of their parents, family frame of reference is maintained that would promote a harmonious growth of the personality of the child”.

What criteria do judges apply when granting joint custody?

The Supreme Court has also established a series of basic criteria to be considered in order to establish whether or not the interests of the minor are protected, since it is an abstract legal concept. These are some criteria that a judge can consider in order to opt for a single or shared custody and that can help you achieve an appropriate solution in your case:

  1. Previous relationships of the parents with the child and their personal qualities.
  2. Preferences expressed by competent minors.
  3. The number of children.
  4. The fulfilment by the parents of their duties in relation to the children and mutual respect in their personal relationships and with other people who live with them.
  5. The location of their homes, parents’ timetables and activities.
  6. The result of all reports required by law.
  7. Any other circumstance that would allow the minors an adequate life in a coexistence that will be more complicated than before.

There are circumstances that can impede the establishment of joint custody, such as, according to the Supreme Court, situations in which children witness conflicts between their parents each time they meet, or when the need to take any decision in common in relation to children turned into a violent dispute that minors are forced to witness. The key, for the Supreme Court, is that such negative atmosphere can end up hurting the minors emotionally, who will suffer with each new encounter between their parents.

Regarding the geographical distance of the homes, according to the judges, it is a determining, but not an exclusive factor, since the essential thing is that such distance is compatible with the joint exercise of custody.

Changes in the Civil Code to promote joint custody

The case law was followed by a possible legislative reform of the Civil Code, aimed, among other things, at turning joint custody into a norm, unless the opposite is more convenient, as an exception. In 2013, a draft bill on the exercise of parental responsibility in the case of nullity, separation and divorce was given free run. However, many of its considerations aroused controversy, and the text received harsh criticism from institutions such as the State Council. In this stagnant situation, it seems that the intention of the legislature is to shape this trend that judges have already marked and adapt the wording of the Civil Code to this solution, because currently, it’s not easy.

Currently, Article 92 of the Civil Code establishes the following:

  1. “The parents may agree on the regulatory settlement or the judge may decide, for the benefit of the children, that parental authority is exercised totally or partially by one of the spouses”, thus, priority is not given to joint custody, at least formally
  2. “The shared exercise of child care and custody of the children will be agreed upon when requested by the parents proposing a regulatory settlement or when both reach this agreement during the proceeding”, which means that this possibility depends on the parents’ request.
  3. “As an exception (…) the judge, at the request of one of the parties, with a favourable report from the Public Prosecutor, may agree to the shared child care and custody based on the fact that only in this way, the prime interest of the minor is adequately protected”, which means that such situations are considered an exception, dependant on the request of one of the parents, when there is no mutual agreement.

Please feel free to contact me if you need help to clarify what type of custody is convenient in your case.

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