Child custody Spain: joint custody permitted in more circumstances

Article 92 of Spanish Civil Code to protect child rights and parental responsability: child custody Spain improved for child's best benefit.

Child custody Spain

Introduction

The Justice Minister has announced that Article 92 of the Spanish Civil Code is to be changed so that judges in divorce proceedings may award joint custody of any children where the interest of the children require it, and not merely in ‘exceptional circumstances’. The amendment ought to be in place within six months.

This is perceived as a major improvement (child custody Spain)

Once passed, the legislative change will mean that it will be for the judge presiding over cases of separation or divorce to determine the best method of ensuring that the children have both parents present in their lives. This could mean awarding custody to just one of the parents or may involve the children spending a similar proportion of time with both parents.

The minister responsible for the change commented that it was the responsibility of the Executive arm of the government to reflect changes in society, one of which was the equal responsibility that both parents have for the upbringing of their children. In this respect he said that Article 92 of the Civil Code was a reflection of past rigidities in the roles played by parents with respect to their children and also stated that it was necessary for the language used in the relevant Article to be brought up-to-date such that instead of using the phrase “guardianship and custody” there should be the phrase “cohabitation of the parents with their children”.

Article 92 (Child custody Spain) preserves the children’s rights to be heared by the court and keeps responsability on parent’s shoulders even after divorce.

The change will therefore give judges in Spain much more discretion to award joint custody than has occurred in the past where it could only be awarded in exceptional circumstances such as where the mother of the child was deemed not be capable of looking after the children alone.

Current Legal Position

The law in Spain states that following the end of a marriage that custody of the children may by awarded to either parent. Although there have been recent developments that suggest the judiciary is beginning to apply more weight to the role of the father in the upbringing of the children (see Shared custody of children in Spain), in approximately 95% of cases, custody is awarded to the mother of the children.

In Spain, in order for the custody of younger children to be taken from the mother, it would be necessary to demonstrate some type of incapacity on her part to look after them. However, once the children are 13 years of age (or less if they demonstrate sufficient maturity) they will be heard by the court before any judgment is made that will personally affect them.

It may be the case of course that the spouses come to an agreement between themselves that sets out the custody of the children including the visitation rights of the spouse who does not take custody. This would have to appear in the divorce agreement. Assuming that the agreement does not put any child at risk the judge will ratify such an agreement.

In the absence of an agreement the court will take the following factors into account:

  • Brothers and sisters should not be split-up
  • The emotional requirements of the children
  • The closeness of other relatives to the children (grandparents etc.)
  • The ability of one or other of the parents to better look after the children
  • Whether either of the parents has an addiction or other psychological condition

But the factor that tends to carry most weight is the dedication of each parent towards the children before the breakdown of the marriage. It is for this reason that the the courts almost always award custody to the mother.

Child custody Spain: Ministerio Fiscal

This is to be carried-out by the judge ordering a report from the ‘Ministerio Fiscal’ (a court official who is present in any court case where children are affected)  and also by considering the views of the parties to the divorce proceedings, the views of the children, any expert views available as well as any other relevant criteria such as age, schooling and how settled the children are in their current location.

Also relevant is the current relationship between the parents  and as between each parent and their children as well as the resolution of each parent to carry-out their parent responsibilities and the possibility of reconciling family and any work responsibilities.

This new measure is accompanied by other provisions that will affect a number of aspects of the post-divorce relationships and responsibilities as follows:

Parental Plan

Similar to existing requirements in Autonomous Communities that have authority to implement  their own version of Civil laws – such as Cataluña – any parents now transmitting divorce proceedings must also present a ‘parenting plan’ that will set-out the manner in which the children will be cared for with regard to custody and education and other aspects of the children’s well-being. The judge may approve the plan or order the parents to attend mediation in an attempt to resolve any differences. But the bedrock shall be that the authority to make decisions regarding the children’s upbringing shall be jointly exercised by both parents.

Domestic Violence

The law will be changed to prevent any person who has been convicted of domestic violence offences from being awarded custody of the children. Likewise, although there may have been no official complaint, if a court has found that there is well-founded evidence that such a crime has been committed  and the judge agrees in the course of the proceedings that there is well-founded evidence of domestic violence, then custody of the children may be denied to the relevant party.

Dissolution of the Family Economic Unit

A major cause of conflict between the parties to a divorce tends to be the resolution of the financial relationship. The new law will make it necessary, upon the initiation of divorce or separation proceedings, to draw-up an inventory of the matrimonial assets so that they may be distributed according to agreements of the parties or order of the court. Once the proceedings have been initiated the couple will no longer be considered to be a single economic unit and so no debts can be accrued by one party on behalf of the other.

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