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