While technically a possibility under the Law of Divorce of 2005 it has been considered an exception and traditionally shared custody of children in Spain 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.
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.
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.
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