Until recently, in the event of a marital breakdown, the custody and guardianship of minor children usually fell to one of the parents and, in most cases, to the mother. However, things are changing, and the courts are moving away from the exceptional nature of shared custody to adopt it as a normal measure.
Although there have already been advances in Autonomous Communities such as Cataluña and Navarra, where joint custody is granted when one of the parents requests it – which in itself is a great step forward – the truth is that in other communities such as Aragon and Valencia, more forceful regulations have been passed that have deeply influenced society.
In fact, in Valencia, shared custody is established as the most effective solution even when the parents cannot reach an agreement, there is opposition from one of the parents, or even when there are bad relations between them, as long as the differences are within reason.
This new way of understanding the safeguarding of the rights of the child is causing higher legislative bodies to also turn towards shared custody, understanding that the mere disagreements between the parents -almost inevitable in a break-up process- may damage the right of the child to live with both parents.
The courts are beginning to point out that it is in shared custody that children, with logical exceptions, find the greatest benefits: their integration with both parents, the disappearance of the feeling of loss, the stimulation of cooperation between the parents in relation to the child, the non-questionability of their suitability as parents, etc.
The change in trend is further strengthened by the latest doctrines dictated by the Constitutional and Supreme Courts, which modify the parameters by which we were governed until now, considering, for example, that the favourable report by the Public Prosecutor’s Office, until now necessary to grant joint custody, is not only not binding but also reminds us that the function of the Public Prosecutor’s Office is none other than to look after the interests of the child, but that the final decision is solely the responsibility of the judge.
But when is joint custody considered to be more beneficial for the child?
Well, in the new trend, included in the Draft Bill on the exercise of co-parental responsibility and other measures to be adopted after the breakdown of cohabitation approved by the Council of Ministers in 2014 but not yet submitted to the Spanish Parliament, it is considered that joint custody is the one that normally benefits the child the most and, therefore, the desirable one, although this measure should not be adopted automatically, but rather different factors should be analysed.
These factors refer to all those circumstances that may affect cohabitation such as the previous practice of the parents in relation to their children and their personal aptitudes, the wishes expressed by the children themselves when they have sufficient judgement, the number of children, the result of the reports carried out by a Psychosocial Team attached to the Family Court, or the fulfilment by the parents of their duties in relation to their children and the mutual respect in their personal relationships, but be careful! in a context where it is presumed that these relationships will often be tense, difficult and even bad, because they are the consequence of a process of rupture, without this meaning that they can harm the benefits of the child.
In addition to these factors, there are other factors such as the age, opinion and social, school and family roots of the minors, the possibilities of reconciling family and work life of the parents, the situation of their habitual residences, etc.
And when this regulation comes into force, will it be applicable to my case? Well, according to the Law itself, specific cases may be reviewed at the request of one of the parties or the Public Prosecutor’s Office, so the best thing to do is to consult your lawyer to request shared custody.
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