The Spanish government has just produced a draft bill that could see important changes in how the custody of children is dealt with by the Courts following a divorce in Spain.
The existing law regarding custody of children states that, upon divorce, shared custody should only be considered ‘exceptionally’. This provision is to be removed and a new article inserted that instead will confer upon the judge the power to decide how the custody of the children is to be exercised.
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:
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.
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.
Agreement Between the Parents
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