IMPORTANT: This article was written in accordance with the legal framework and case law in effect at the time of its publication. Joint custody must now be analyzed in accordance with applicable regulations, the most recent case law, and the specific circumstances of each family, always taking into account the best interests of the child. In particular, the current criteria regarding joint custody, shared parental responsibility, psychosocial reports, relationships between parents, and any factors that may affect the child’s well-being should be reviewed.
Joint Custody: A Desirable Model in the Best Interests of the Child
After an immersion in our country’s case law, we can observe a change regarding what judges have been ruling concerning shared custody, as well as its granting. Our High Court has come to consider it not as an exceptional measure, but as the desirable one, in the interest and for the benefit of the minor, a supreme interest protected by our legal system, as well as by international laws and treaties.
This cohabitation model after the parents’ separation is desirable provided that the appropriate circumstances for its implementation are met, thus allowing the children’s right to relate to both parents to be effective.
What judges aim to achieve by granting this custody model is to approximate the cohabitation regime that existed before the breakdown of the family unit and, thereby, avoid abrupt changes in the minor’s life, assimilating this situation to the one they experienced previously with both parents. This allows both the father and the mother to continue exercising the inherent rights and obligations they possess based on parental authority or parental responsibility towards and for their children, thus participating equally in their children’s upbringing, closely following their growth, which would be most beneficial for both parties.
Psychological Studies Supporting Joint Custody
Numerous psychological studies advocate for the implementation of shared custody as the predominant model to follow in cases of divorced families with children. These studies show scientific evidence of the benefits that shared custody provides to minors, indicating that when this model is prioritized, children experience fewer emotional and psychological problems, lower risks of developing behavioral disorders, better relationships with parents, and higher academic performance, among many other benefits and advantages of this system.
Consequently, we find numerous psychology experts who support shared custody, as well as associations such as the American Psychological Association and the Spanish Association of Primary Care Pediatrics, which recommends that ”children have equal access time to both parents to face and cope with marital breakdown”.
What these studies show is that most children, whose parents break up their normal cohabitation, benefit more from shared custody than from sole custody. Furthermore, these studies do not provide convincing evidence that conflict between parents recommends sole custody.
Case Law of the Supreme Court
As an illustration of all the above, we provide the following extracts of jurisprudential doctrine, among which we find:
- STS 2650/2014. Supreme Court. Civil Chamber 02/07/2014
“The interpretation of Article 92, paragraphs 5, 6, and 7 of the Civil Code must be based on the best interests of the minors who will be affected by the measure to be taken regarding joint custody, which shall be granted when any of the criteria reiterated by this Chamber and set forth as case law in the April 29, 2013, ruling are met, as follows: ‘it must be based on the best interests of the children who will be affected by the measure to be taken, which shall be granted when criteria such as the parents’ prior conduct in their relationships with the child and their personal aptitudes; the wishes expressed by competent children; the number of children; the parents’ fulfillment of their duties toward their children and mutual respect in their personal relationships; the findings of the legally required reports; and, ultimately, any other factor that allows the children to lead an adequate life, even if in practice this may be more complex than when the parents live together. Noting that the wording of Article 92 does not allow for the conclusion that this is an exceptional measure; on the contrary, it must be considered normal and even desirable, because it ensures the effective exercise of the children’s right to maintain a relationship with both parents, even in crisis situations, whenever and to the extent that this is possible.”
As specified in the judgment of July 19, 2013: “the interest of the minor is prioritized, and this interest, which neither Article 92 of the Civil Code nor Article 9 of Organic Law 1/1996, of January 15, on the Legal Protection of Minors, defines or determines, undoubtedly requires a greater commitment and collaboration from their parents aimed at resolving these types of situations within a framework of family normality that moves beyond a merely formal relationship of the non-custodial parent with their children which, without the express collaboration of the other, ends up discouraging it both from the relationship of the non-custodial parent with their children, and from the children with that parent”.
The aim is to bring this arrangement closer to the living arrangement that existed before the marital breakdown, while ensuring that parents can continue to exercise the rights and obligations inherent in parental authority or responsibility and participate on an equal footing in their children’s development and upbringing, which also appears to be in the children’s best interest.
[…] Taking as reference the previous agreement by which the mother was to have custody means ignoring the reality of things and, what is more serious, fails to assess the attitude of both parents to reach a provisional custody agreement after the breakdown, which had no other purpose than to guarantee the immediate interest of the minors by trying not to harm them and not to generate an environment of conflict that would negatively affect them.”
- STS 3214/2015. Supreme Court. Civil Chamber 17/07/2015
“It must be assumed that the joint custody arrangement is the normal and desirable one; the Court notes that the wording of Article 92 does not allow for the conclusion that this is an exceptional measure, but rather, on the contrary, it must be considered normal and even desirable, because it ensures the effective exercise of the children’s right to maintain a relationship with both parents, even in crisis situations, provided that this is possible and as soon as it becomes so.”
The doctrine of the Constitutional Court, echoed by the Chamber in the cited judgments (STC 185/2012, of October 17), has brought about a substantial change in the view on shared custody.
The Court’s statement regarding the joint custody system must be understood in light of this principle when it asserts that “The interpretation of Article 92, paragraphs 5, 6, and 7 of the Civil Code must be based on the best interests of the children who will be affected by the decision regarding joint custody, which shall be granted when any of the criteria reiterated by this Chamber—and set forth as established case law in the April 29, 2013, ruling—are met, as follows: “must be based on the best interests of the children who will be affected by the measure to be taken, which shall be granted when criteria such as the parents’ prior conduct in their relationships with the child and their personal aptitudes; the wishes expressed by competent children; the number of children; the parents’ fulfillment of their duties toward their children and mutual respect in their personal relationships; the findings of the legally required reports; and, ultimately, any other factor that allows the children to lead an adequate life, even if in practice this may be more complex than when the parents live together.”
The aim is to bring this system closer to the model that existed prior to the marital breakdown, while ensuring that parents can “continue” to exercise the rights and obligations inherent in parental authority and participate on an equal footing in their children’s development and upbringing.
For the appropriate answer to the previous question, the criteria that must be evaluated for the attribution of shared custody, and which have been collected by this Chamber, must be considered. In the judgment of October 8, 2009, Rc. 147/2006, reiterated by subsequent ones, it was stated that: […] the Spanish Code does not contain a list of criteria that allow the Judge to determine in each specific case what circumstances should be taken into account to justify the minor’s interest in cases where there are discrepancies between the parents, which do not, however, prevent the decision on joint custody. […] From the study of comparative law, it is concluded that criteria such as the parents’ previous practice in their relations with the minor and their personal aptitudes; the wishes expressed by competent minors; the number of children; the parents’ fulfillment of their duties in relation to the children and mutual respect in their personal relations and with other people living in the family home; the agreements adopted by the parents; the location of their respective homes, schedules and activities of each; the result of legally required reports, and, ultimately, any other that allows minors an adequate life in a cohabitation that will necessarily be more complex than that carried out when parents live together” .
Naturally, these criteria must attend, as already indicated, to the protection of the minor’s interest, interpreting Article 92 with that purpose, without prejudice to the fact that the agreed measure may be reviewed if a change in the factual situation and new circumstances that allow a different type of custody or prevent the one that had been agreed upon earlier are proven.”
Current Case Law from the Provincial Court of Seville
Continuing with the jurisprudential path dictated by the Supreme Court, other judicial bodies have adopted these pronouncements in their resolutions, notably the Provincial Court of Seville, which in more recent pronouncements states that:
- SAP 797/2023. Provincial Court of Seville 25/04/2023 (ECLI:ES:APSE:2023:797)
“Joint custody, as a system of family organization, following the breakdown of a marital or de facto relationship, based on the idea of shared parental responsibility and the equal distribution of tasks, roles, and time spent with the children of the relationship, is considered by the Supreme Court to be not only a normal and non-exceptional model, but also a desirable one, given its undeniable advantages and benefits, and must be implemented whenever it is feasible and in the best interests of the minor children, provided that the legally required prerequisites and appropriate conditions are met, and no negative factors exist that would preclude its implementation. The Supreme Court’s ruling of February 11, 2016, reflects the case law on joint custody, stating that the wording of Article 92 does not allow for the conclusion that this is an exceptional measure; on the contrary, it must be considered normal and even desirable, because it ensures the effective exercise of the children’s right to maintain a relationship with both parents, even in crisis situations, provided that this is possible and to the extent that it is” (Supreme Court Ruling of April 25, 2014). As the judgment of July 19, 2013, specifies: “The best interests of the child take precedence, and these interests—which neither Article 92 of the Civil Code nor Article 9 of Organic Law 1/1996 of January 15 on the Legal Protection of Minors define or determine, undoubtedly requires a greater commitment and cooperation from the parents so that such situations are resolved within a framework of family normality that moves beyond the routine of a merely formal relationship between the non-custodial parent and his or her children—a relationship which, without the express cooperation of the other parent, ends up discouraging it both in terms of the non-custodial parent’s relationship with his or her children and the children’s relationship with him or her.” The aim is to bring this arrangement closer to the model of cohabitation that existed before the breakdown of the relationship and, at the same time, to guarantee parents the possibility of continuing to exercise the rights and obligations inherent in parental authority or responsibility and of participating on equal terms in the development and upbringing of their children, which also appears to be in the children’s best interest. (Judgment of July 2, 2014).’’
Likewise, regarding conflicting relationships between parents for the granting of shared custody, an important point of study, we find pronouncements such as the following:
- SAP 859/2023. Provincial Court of Seville 27/03/2023. (ECLI:ES:APSE:2023:859)
”We must analyze and subsequently reject the arguments against the change of custody presented in the appeal, starting with the child’s illness. And we must ratify what was agreed by the judgment because the need for secure routines or extraordinary care cannot be a reason to exclude shared custody.
We consider that the relationship with both parents is objectively beneficial for the minor, as the psychological development of children is favored by this contact.
In other words, the goal of joint custody is to ensure that the father is perceived as a source of emotional attachment and is associated with the idea of emotional stability and belonging to the family unit.
To this generally valid consideration is added in this case that the child has a sister and that the father has formed a reconstituted family, which will necessarily translate into an increase in attachment figures and possibilities for the child’s psychological and emotional well-being.
[…] the alleged bad relations between the parents are not sufficiently relevant to prevent shared custody. The appeal states that the relationship between the parents is bad and that the father wants to impose his criteria at all times
In this regard, the Supreme Court Judgment of July 7, 2022, can be cited
”Conflicting relationships between parents in the shared custody regime.
We have pointed out that, to establish a shared custody regime, an agreement without fissures between the parents is not required, but rather a reasonable and efficient attitude towards the development of minors, as well as dialogue skills that should be presumed to exist (judgments 545/2016, of September 16; 559/2016, of September 21; 23/2017, of January 17 and 404/2022, of May 18, among others), without the existence of disagreements typical of the cohabitation crisis justifying per se the disapproval of this specific communication regime. It would be necessary for there to be proof that such differences or confrontations significantly affected their minor children, causing them harm.
In short, as noted in Judgment No. 318/2020, dated June 17. “Closely related to that interest, it is true that the judgment of October 30, 2014, Case No. 1359/2013, referred to in the judgment of July 17, 2015, Case No. 1712/2014, states that ‘This Chamber must declare that joint custody is premised on the need for a relationship of mutual respect between the parents that allows for attitudes and behaviors that benefit the child, that do not disrupt the child’s emotional development, and that, despite the parents’ actual separation, a family framework is maintained to support the harmonious development of the child’s personality.”
However, this does not mean that the existence of disagreements—which are typical of a marital crisis—in and of themselves justify this custody arrangement, unless they significantly affect the children to their detriment. For the tense situation between the parents to warrant against adopting a joint custody arrangement, it must be of a greater severity than that typically associated with a marital crisis.
- SAP SE 159/2023. PROVINCIAL COURT OF SEVILLE 24/01/2023. (ECLI:ES:APSE:2023:159)
‘Shared custody, as a system of family organization, subsequent to the breakdown of marital or de facto cohabitation, based on the idea of parental co-responsibility and the equal distribution of tasks, functions, and time spent with common children, is considered by the Supreme Court as the model not only normal and not exceptional, but desirable, given its undeniable advantages and benefits, and must be implemented whenever it is viable and convenient for the superior interest of minor children, when the legally required prerequisites and adequate conditions are met, and no negative factors opposing its implementation appear. The Supreme Court judgment of February 11, 2016, collects the jurisprudential doctrine on shared custody, declaring that the wording of Article 92 does not allow concluding that it is an exceptional measure, but on the contrary, it should be considered normal and even desirable, because it allows the children’s right to relate to both parents to be effective, even in crisis situations, whenever possible and as long as it is so”
[…] it undoubtedly requires a greater commitment and collaboration from their parents aimed at resolving these types of situations within a framework of family normality that moves beyond a merely formal relationship of the non-custodial parent with their children which, without the express collaboration of the other, ends up discouraging it both from the relationship of the non-custodial parent with their children, and from the children with that parent”. The aim is to bring this regime closer to the cohabitation model existing before the breakdown of cohabitation and at the same time guarantee parents the possibility of continuing to exercise the rights and obligations inherent in parental authority or responsibility and to participate on equal terms in the development and growth of their children, which also seems most beneficial for them.
After examining and evaluating the proceedings in the first instance, as well as the arguments put forward in the respective appeal and opposition briefs, the Chamber can only confirm the appealed judgment that attributes custody. It is attributed in a shared manner, considering it the most beneficial regime for the minor, taking into account that the capacity of neither parent to exercise custody is disputed, since, as stated in the appealed judgment, there is no indication that the father is incapacitated for shared custody because he leads a disorderly life or has alcohol problems, and the Psychosocial Team’s report affirms that both parents are capable of sustaining the minor’s custody, who maintains a stable general adaptation in both maternal and paternal family areas, concluding that despite the existing conflict between the parents, the most beneficial for the minor is a shared custody system by weeks because the minor has been developing correctly.
Furthermore, with regard to the established conflict in the parents’ relationship, the Supreme Court’s case law has consistently held that a seamless agreement is not required, but rather a reasonable and constructive attitude toward the children’s well-being, as well as the ability to engage in dialogue—which is presumed to exist in the litigants— unless there is evidence to the contrary, since the fact that the parents are not on good terms is a logical consequence of a decision to end the marriage; indeed, a situation of close, harmonious coexistence would be the exception rather than the rule.”
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Author: Eduardo Portillo Gómez
Preguntas frecuentes sobre custodia compartida
¿Se concede siempre la custodia compartida?
No. La custodia compartida debe valorarse caso por caso. El juez analizará las circunstancias familiares, la edad y necesidades de los hijos, la disponibilidad de los progenitores, la relación previa con los menores, los domicilios, los horarios y cualquier otro factor relevante para su bienestar.
¿Qué factores se tienen en cuenta para acordar la custodia compartida?
Entre otros factores, se valoran la práctica anterior de los progenitores en el cuidado de los hijos, sus aptitudes personales, el cumplimiento de sus deberes parentales, la relación entre ellos, la cercanía de los domicilios, los horarios laborales, los deseos de los menores con suficiente madurez y los informes psicosociales cuando existan.
¿La mala relación entre los progenitores impide la custodia compartida?
No siempre. La existencia de desencuentros propios de una ruptura no impide por sí sola la custodia compartida. Para descartarla, normalmente debe acreditarse que el conflicto tiene una intensidad relevante y perjudica de forma real al bienestar de los hijos menores.
¿Es necesario que los progenitores estén totalmente de acuerdo?
No se exige una relación perfecta ni un acuerdo absoluto entre los progenitores, pero sí una actitud razonable, capacidad de comunicación mínima y disposición para adoptar decisiones que beneficien a los hijos y permitan el correcto desarrollo del régimen de custodia.
¿Qué papel tienen los informes psicosociales?
Los informes psicosociales pueden ayudar al juez a valorar la situación familiar, las capacidades parentales, la adaptación de los menores y la conveniencia de un sistema de custodia compartida. No obstante, el juez valorará el conjunto de pruebas del procedimiento.
¿Puede modificarse una custodia exclusiva a custodia compartida?
Sí. Puede solicitarse una modificación de medidas si existen circunstancias que justifiquen el cambio y si la custodia compartida resulta beneficiosa para el menor. Será necesario acreditar que el nuevo régimen responde mejor a sus necesidades actuales.
¿Por qué conviene contar con abogado en un procedimiento de custodia?
Porque cada caso requiere un análisis individualizado de las circunstancias familiares, la prueba disponible y la jurisprudencia aplicable. Un abogado especializado en derecho de familia puede orientar sobre la viabilidad de la custodia compartida y defender adecuadamente el interés del menor y los derechos del progenitor.
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