Fathers Rights Spain

Although recent developments suggest judges are beginning to consider father's rights when making orders regarding childrens' upbringing.

Fathers rights spain

Background

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.

Visitation Rights

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.

Additional Rights

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.

Related Services

33 Lawyers Offering Modification of Family Law Court Orders Services in Spain

Testimonials for our Modification of Family Law Court Orders service
  • Maja Alberte Bache
    Maja Alberte Bache, Almeria

    I can fully recommend Alvaro - he patiently explained the procedures - and trustfully led us through it as well ulfilled the case in the best possible way. Thanks


    Sep 09, 2020
  • Stephen Harris
    Stephen Harris, Fuengirola

    My solicitor here in Spain did get me a divorce as requested and tried his best to get it recognized in the U.K. unfortunately this has proved impossible. My solicitor here probably not aware of the difficulty at that time but did his utmost best.


    May 14, 2020
  • Freida Maybury
    Freida Maybury, MA Divorce Service

    Rosa is always very pleasant and explains everything well . She is sympathetic and caring . If she can help she will and if she can’t she puts you in the right direction . She’s always on hand to answer questions.


    Mar 23, 2020
  • Havin Omed
    Havin Omed, Madrid

    I was satisfied with all of services above. Especially his responses so good.


    Jan 17, 2020
  • Eamonn Gomez
    Eamonn Gomez, Madrid

    Francisco and Carmen did a great job handling my divorce. In this difficult time for me, they handled the issues with understanding and flexibility.


    Francisco was very good in court and he could defend well against all the challenges made to the pre-nuptial contract my husband and I signed, so that it was upheld in full.


    Sep 29, 2019
  • Eamonn Gomez
    Eamonn Gomez, Madrid

    Francisco was extremely helpful, he couldn't have done more.


    Sep 07, 2019
  • Tina Shiels
    Tina Shiels, Fuengirola

    Alvaro was very helpful and went above and beyond to try to help me in my situation as I needed it to happen as fast as possible.


    Even whilst he was on holiday he was in touch and made things happen. would definitely recommend!


    Sep 06, 2019
  • Davinia Gordon
    Davinia Gordon, Malaga

    Very satisfied with the service provided!


    Jul 31, 2019
  • Keith Hodges
    Keith Hodges, Torrevieja

    Rosa is the consummate professional. Her responses to messages were always prompt and her advice was extremely helpful.


    Even when my ex wife employed a lawyer who really didn’t know what he was doing, she was very patient and logical. She provided an excellent service.


    She is the best advocate I have ever been associated with. I was a police officer for 30 years and have come into contact with many lawyers. She is amazing!


    Jul 25, 2019
  • Dave Holmes
    Dave Holmes, Fuengirola

    Very prompt reply to my original email. Alvaro is extremely professional & understanding.


    I would recommend Alvaro to anyone who needs legal help in Spain


    Jun 25, 2019
  • Jeffrey Gorman
    Jeffrey Gorman, Granada

    Always available and ready to help, nice guy easy to talk to.


    May 31, 2019
  • Robert Cunningham
    Robert Cunningham, Mallorca

    Rosa was absolutely first class. She made a very difficult time in our lives a lot easier and for that I could not be more grateful. Thank you Rosa


    May 20, 2019
  • Mareike Stobbe
    Mareike Stobbe, Girona

    Always reachable, knowledgeable and super service all around.


    Apr 26, 2019
  • Keisha
    Keisha, Valencia

    Inmaculada was professional and also demonstrated compassion and understanding during this difficult period in my life.


    Apr 03, 2019
  • Wayne
    Wayne, Valencia

    Francisca was very informative and helpful. She handled my divorce professionally and made it easy for me throughout the process.


    Highly recommend and reasonable fees. Thank you, Francisca!


    Mar 16, 2019
  • Wayne Cherry
    Wayne Cherry, London, England

    Francisca was very informative and attentive to all of my inquiries and concerns. I would definitely be going back to her if needing her services again and would recommend her brilliant services.


    Mar 09, 2019
  • Candy
    Candy, Cadiz

    Francisco was very responsive, supportive and understanding.


    Unfortunately, I had to use another lawyer who has helped me in another case.


    Feb 11, 2019
  • Florence
    Florence, Fuengirola

    The service was quick and satisfactory. I was impressed by the lawyer's work. Very professional, easy going and communicative. Everything was perfect!


    Jan 08, 2019
  • Lloyd
    Lloyd, Seville

    Rafael was always there for me. He catered to my schedule rather than me to his.


    Jan 07, 2019
  • Colin Wilson
    Colin Wilson, Australia

    Overall it was great. Rosa always answered all questions asked and provided clear, concise and well explained answers.


    When there was a delay in responding she did offer an apology which was appreciated. Rosa always instilled a sense of confidence that she knew exactly what was going on, what I was asking, and what the applicable law was.


    When not a Spanish local and dealing with her remotely, this provided great comfort in a sensitive matter.


    Oct 30, 2018
  • David Pratt (Fuengirola)
    David Pratt (Fuengirola)

    Alvaro was helpful and knowledgeable. My problem was solved rapidly and effectively.


    May 04, 2018
  • David Pratt
    David Pratt, Alhaurin del Grande

    Alvaro gives me confidence that he understands the issue and gives me practical solutions. He works rapidly and efficiently. I would strongly recommend his services.


    Apr 13, 2018
  • John Burchell
    John Burchell, Arroyo De la Miel

    Alvaro was very professional, helpful and friendly.


    Understood things quickly. Explained things well in English. Very easy to contact at any time.


    Mar 20, 2018
  • Robert Davies
    Robert Davies, Mallorca

    Very supportive and clear on producing a suitable divorce settlement.


    Efficient, understanding and professional.


    Mar 12, 2018
  • Tamara Malcolm
    Tamara Malcolm, Mallorca

    Rosa was and is extremely knowledgeable and helpful. Her advice was excellent and i will definitely be using her expertise again in the future.


    Feb 20, 2018
  • Sharon williams
    Sharon williams, London

    Christina was very helpful and a good listener to what my worries and needs were.


    She responded to what I needed very professionally and sufficiently. I will and shall be using Christina again if necessary.


    Mar 10, 2017
  • Stanley Jones
    Stanley Jones, Llano del Camello

    I am very satisfied with Oliver, he was very helpful and always happy to assist.


    I would definitely use the same lawyer again in the future.


    Jan 17, 2017
  • CW
    CW, Ibiza

    Very knowledgeable and supportive from the outset.


    Made to feel very comfortable and nothing was too much trouble. Very highly recommended.


    Nov 22, 2016
  • Abi Carr
    Abi Carr, Mijas Costa

    Alvaro assisted me through an extremely difficult and complex situation. At all times he was professional, reassuring and diligent, explaining anything I did not quite understand, and working tirelessly on my behalf.


    He kept me informed throughout, always responding to my calls and emails very quickly. Excellent service, and value for money. I highly recommend Alvaro. I would not hesitate to use him again.


    Oct 28, 2016
  • Michael Anthony
    Michael Anthony, Malaysia

    I found Francisco to be very understanding of my needs and was able to discuss frankly with him on sensitive and personal matters.


    I found Francisco to be extremely professional, helpful, knowledgeable and importantly very approachable. I would certainly recommend him to anyone who needed such services and I would certainly use him and his law firm again if the need arose.


    Aug 19, 2016
  • Michelle Richardson
    Michelle Richardson, UK

    Domingo has great empathy, and works hard with great understanding of your needs.


    Domingo is available and flexible, he is there for you always, and very professional at all times.


    My case was a difficult one,Domingo did all he could given the circumstances, I could not of have asked for more.


    Apr 19, 2016
  • Kate Godbehere
    Kate Godbehere, Granada

    From the outset, Rosa was extremely professional, approachable, efficient and competent. Her level of English is extraordinary, something very much appreciated as it made life easier for me during an inherently difficult time.


    Her correspondence was always relevant, detailed, simply and clearly explained and expressed. Rosa was kindly, matter of fact, calm, patient and always reassuring.

    Her pro-active, intelligent, thoughtful and knowledgeable advice helped very much during a particularly delicate and worrying stage of the process.


    Feb 25, 2016
  • Ian Bailey (Mallorca)
    Ian Bailey (Mallorca)

    I recently used Rosa and found her service excellent!


    May 31, 2015