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.