Although recent developments suggest judges are beginning to consider father's rights when making orders regarding childrens' upbringing.
The law in Spain states that, following the end of a marriage, custody of the children may be 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, 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 in any way the judge will ratify such an agreement.
Factors Relevant to the Court
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 courts almost always award custody to the mother.
Once custody has been established it becomes necessary to determine the visitation rights that the non-custodial parent may enjoy.
The typical arrangement in this regard is for the children to spend alternate weekends with the non-custodial parent and 50% of the holiday periods. However this is also in the process of changing and more and more often mid-week visits are also arranged.
The age of the child is taken into consideration when determining the appropriateness of overnight stays with the noncustodial parent, and typically very young children and infants would not do so.
While the non-custodial parent has the right to enjoy the visitation rights agreed with the other spouse or as decided by the judge, there are other ancillary rights that they enjoy:
- Be informed of any important incidents involving the children
- Continue having the right to make decisions with regard to the upbringing of the children
- Have recourse to the judge should there be a failure to complete the terms of the visitation schedule
Once the children reach 13 years of age they may have their opinion taken into account with regard to establishing the timetable and dates of visits with the non-custodial parent.
Shared Custody in Spain
While technically a possibility under the Law of Divorce of 2005 shared custody of children in Spain has been considered an exception and has been awarded in a minority of cases, only occurring in 9.7% of all custody awards made in 2008, for example.
This is changing however and there is an increasing tendency by the Autonomous Communities in Spain to enact legislation compelling judges to consider awarding shared custody of children following a divorce.
Currently four of the 17 autonomous communities have opted to create laws that make the award of shared custody the preferred option for the court hearing a petition for divorce – Aragón, Cataluña, Communidad de Valencia and Navarra.
Definition of Shared Custody
The award of shared custody involves both parents more directly in the upbringing of the children. It does not necessarily mean that the children spend 50% of the time with each parent or that the parents necessarily must move in and out of the matrimonial home every six months, as has been suggested.
It has been defined as “the shared assumption of authority and responsibility by separated parents of common children that permits the children the possibility of counting on both parents…of really having both a mother and a father…”
In practice, the concept of shared custody permits both parents and the courts more flexibility when considering the post-divorce upbringing of their children. This may take the form of the children sleeping in one of their parent’s houses but being picked-up from school and having a meal each day with the other parent.
Benefits of Shared Custody
The system of shared custody is beneficial in that it is a move away from the strict application of custody being awarded to one parent who must then grant the other parent access to the children.
The system of lone-parent custody has been criticised on the grounds of marginalising the non-custodial parent and generally depriving the children of having “both a mother and father”. At the moment it is the law in four autonomous communities but it seems to be on the radar of more and may well become the norm at some point in the future.
It should also be pointed out that shared custody may be agreed between the spouses and it is only a matter for the court to consider when agreement has not been reached. Once again, the spouses may agree on any arrangement between themselves that does not in any way harm the children.
Interpretation by the Supreme Court
A decision by the Spanish Supreme Court in July of 2011 recently considered the concept of ‘shared custody’ and it may have important implications in this area of family law.
The court decided that the award of ‘shared custody’, which is made available under Article 92 of the Civil Code, should not be applied only as an ‘exceptional measure’ – the approach of Spanish courts to date – as this was not an attribute conferred by the Code but rather should be considered as ‘…most normal’.
According to the Supreme Court, the starting point when deciding about the future of the children after a matrimonial rupture is to watch over their best interests.
Interests of the Child
The Court noted that it had on a number of occasions had reason to confirm the criteria relevant to the determination of the meaning of ‘interests of the child’, that should be taken into account in cases where custody had to be decided. These included
‘the dedication of the parents with the children before the rupture, their personal aptitude, and the wishes of the children…’
That said, the court felt that clarification was required concerning the drafting of Article 92 and the fact that it ‘does not permit the conclusion’ that shared custody ‘is to be treated as an exceptional measure’ but rather, ‘on the contrary, should be considered the most normal measure, as it affords the effectiveness of the right of the children to have a relationship with both parents, even in a crisis situation, in situations where it is possible’.
It remains to be seen what impact this judgment will have on Spanish Family Law.
However it seems likely that it will afford judges in divorce cases a greater flexibility when considering the award of custody – not just in new cases but also in those cases where existing custody arrangements fall to be considered upon an appeal by a non-custodial parent.