Joint custody (Spain)

The 2005 divorce law (Law 15/2005) introduced the important new possibility of joint custody, even though this is subject to the mutual agreement of both parents. Such agreement is given only in rare cases. Practically, in most divorce cases the sole custody of the child is given to the mother.

Joint custody, or co-parenting, has been defined as "the legal situation where, in case of divorce, both parents have equal rights to take legal custody of their children".[1]

Joint custody is intended to fulfill the provisions of the Convention on the Rights of the Child. Proclaimed by the General Assembly of the United Nations on November 20, 1989 and ratified by Spain on November 30, 1990, these provisions require states to respect the child's right to maintain personal relations and direct contact with both parents on a regular basis, unless it is damaging to the interests of the child.

In Spain, the custody of children after a separation is governed by art. 92 of the Civil Code, amended by Law 15/2005,[2] of July 8, in terms of separation and divorce. This article considers the joint custody regime, although the possibility of agreement distinguishes joint custody by agreement of the parents (Article 92.5) when requested by parents in the proposed regulatory agreement when both reach this agreement in the course of legal proceedings (Article 92.8). Exceptionally, even without such agreement, the judge, requested by either party and with a favorable report from the Public Prosecutor, may grant shared custody on the basis that this is the only way to adequately protect the interests of the minor.

In no case should a joint custody be granted if either parent is the subject of criminal proceedings initiated by endangering the life, physical integrity, freedom, moral integrity or sexual freedom or integrity of the other spouse or the children who live with both, nor proceed when the judge gives notice of the claims of the parties and the evidence presented demonstrates founded suspicion of domestic violence.

Therefore, despite the reform, unless joint custody is agreed upon by both parents, joint custody remains exceptional, which requires a favorable report of the prosecution and is based only on the protection of the interests of the child, which makes the practical application of this rule very restrictive.

However, in recent months the situation seems to be undergoing a change in many courts. A recent Supreme Court decision, dated July 7, 2011, recalls that the starting point when deciding on the future of the children following the breakdown of a marriage is to protect their interests: among them the previous practice of parenting in their relationship with the child, their personal abilities, and the children's wishes.

It should be understood that the wording of Article 92 "cannot conclude" that joint custody "is an exceptional measure", but "on the contrary, should be considered normal, is effective because it allows children to interact with both parents, even in crisis situations, whenever possible."

Some autonomous communities, such as Aragon, Catalonia, Navarra and Valencia, have regional specific custody legislation. Compared to the Spanish Civil Code (The Civil Code of Spain) (Spanish: Código Civil), formally the Royal Decree of 24 July 1889 (Spanish: Real Decreto de 24 de julio de 1889) is the law that regulates the major aspects of Spanish civil law), the regional legislation promotes joint custody as a general or preferred option that does not require the agreement of both parties nor a report from the Public Prosecutor. In this way, the regional legislation circumvents two vetoes that often prevented the application of joint custody in practice.