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While technically only considered a possibility under the Law of Divorce of 2005, shared custody has been considered an exception and traditionally 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, Comunidad de Valencia and Navarra.
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…”.
1. Benefits to the children
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.
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. That system has been criticised on the grounds of marginalising the other 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. The spouses may agree on any arrangement between themselves that does not in any way harm the children.
2. Shared custody to be promoted
The Justice Minister Alberto Ruiz-Gallardón 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.
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”.
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.
For more information on the law relating to divorce in Spain, as well as your rights, go to: divorce in Spain.