It is the attribution to both parents of the custody of underage or disabled children, with equal rights and obligations, after the separation or divorce of the parents.
The Judge, upon agreeing on joint custody and after substantiating the resolution, will adopt the appropriate precautions for effective compliance with the established custody regime, trying not to separate the siblings.
Currently more than 40% of custody granted in Spain is through joint custody, although there are quite a few differences between autonomous communities.
When is the joint custody regime agreed?
Article 92 of the Civil Code established that the shared exercise of guardianship and custody of the children will be agreed when the parents request it in the proposed regulatory agreement or when both parents reach this agreement during the course of the procedure.
Or when only one of the parents requests it, the Judge will agree to the joint custody whenever it is considered to be in the best interest of the minor. It is not necessary for the Prosecutor to declare in favour of the joint custody.
It can also be agreed upon after the separation or divorce ruling, initiating a procedure of modification of the measures, which may be by mutual agreement between the parties or dispute.
What are the criteria for implementing joint custody?
• The benefit of the minor.
• That the minors are over 3 years old.
• The relationship of each parent with their children.
• The proximity of the parents’ homes.
• Work schedules compatible with their care.
• Compliance with duties in relation to their children.
• The existence of mutual respect in their personal relationships and that there are no discrepancies regarding the education of their children.
• The results of the expert psychological report or any other legally required report.
Can joint custody be implemented when neither parent requests it?
No. It is an essential requirement to agree on this regime that at least one of the parents requests it. If both request it, the Judge agrees to it in accordance with the article 92.5 of the Civil Code, and if only one requests it, the judge will take into account the reports required in article 92.8 of the Civil Code.
Is there child support in joint custody?
The most common thing is that the expenses are shared and there is no child support payments. But the Judge may take into account the income of each parent and set an alimony payment to compensate for the economic imbalance between both spouses, or when one of them does not have any income.
Can underage children say whether or not they want to be in joint custody?
Yes, in cases where the minors are over 12 years old, the opinion of the children has increasing significance. One of the criteria taken into account by the Judges is that of “the wishes expressed by the minors and the result of the legally required reports”.
Is joint custody possible, even if parents don ́t get along?
Yes. A clear example was the Judgement of the Supreme Court dated 17/01/2018 in which it was established that the “search for a personal confrontation between both spouses cannot in itself be a cause for denying the joint custody system, as it harms the interest of the minor who needs the attention and care of both parents.”
Are there cases in which joint custody cannot be agreed?
Yes, in cases where one of the parents is involved in criminal proceedings for having attempted against the life, physical in- tegrity, morals or sexual freedom of the other spouse or children. Do the periods of coexistence with children have to be the same? No. Joint custody does not require a 50% distribution of co- habitation.
Editorial Note: there is an interesting article that can be found on the Custody X Change website that might be of interest to readers on this subject.
(Feature/Legal: Maria Teres Velasco)