Shared Custody. Updated Case Law.

1.- Shared Custody, the desirable model for the benefit of the minor.

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.

2.- Psychological studies in favor of shared 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.

3.- Supreme Court Case Law Precedents.

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, 5, 6 and 7 of the Civil Code must be based on the interest of the minors who will be affected by the shared custody measure to be taken, which will be agreed upon when any of the criteria reiterated by this Chamber and included as jurisprudential doctrine in the judgment of April 29, 2013, are met as follows “it must be based on the interest of the minors who will be affected by the measure to be taken, which will be agreed upon when 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; the result of legally required reports, and, ultimately, any other that allows minors an adequate life, even if in practice it may be more complex than that carried out when parents live together. Pointing out 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 “

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 regime closer to the cohabitation model existing before the marital breakdown 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.

[…] 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 shared custody regime should be the normal and desirable one, with the Chamber noting 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.

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.

Assuming this principle, what the Chamber has declared about the shared custody system must be framed when it states that “The interpretation of Article 92, 5, 6 and 7 of the Civil Code must be based on the interest of the minors who will be affected by the shared custody measure to be taken, which will be agreed upon when any of the criteria reiterated by this Chamber and included as jurisprudential doctrine in the judgment of April 29, 2013, are met as follows” it must be based on the interest of the minors who will be affected by the measure to be taken, which will be agreed upon when 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; the result of legally required reports, and, ultimately, any other that allows minors an adequate life, even if in practice it may be more complex than that carried out when parents live together.”

The aim is to bring this regime closer to the model existing before the marital breakdown and at the same time guarantee parents the possibility of “continuing” to exercise the rights and obligations inherent in parental authority and to participate on equal terms in the development and growth of their children.

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.”

4.- Current Case Law by 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)

”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” (STS April 25, 2014). 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 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. (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, with shared custody, our goal is to guarantee the perception of the father as an attachment figure associated with the idea of emotional stability and belonging to the family group.

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.

Ultimately, as stated in judgment 318/2020, of June 17. “In close relation to that interest, it is true that the judgment of October 30, 2014, rc. 1359/2013, to which the judgment of July 17, 2015, rc. 1712/2014, refers, states that “This Chamber must declare that shared custody entails as a premise the need for a relationship of mutual respect between parents that allows the adoption of attitudes and behaviors that benefit the minor, that do not disturb their emotional development and that, despite the effective breakdown of the parents, a family reference framework is maintained that supports a harmonious growth of their personality“.

But this does not prevent the existence of disagreements, typical of the marital crisis, from authorizing this custody regime per se, unless they significantly affect minors to their detriment. For the tense situation between parents to advise against adopting the shared custody regime, it will be necessary for it to be of a level higher than that typical of a marital crisis situation.”

• 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, regarding the proven conflict in the parents’ relationship, the Supreme Court’s case law repeatedly states that an agreement without fissures is not required, but rather a reasonable and efficient attitude towards the development of minors, as well as dialogue skills that must be presumed to exist in the litigants, as there is no evidence to the contrary, since the fact that parents are not in good harmony is a logical consequence after a decision of marital breakdown, as an intimate cohabitation situation would be unusual.”

4.- How Can We Help You?

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Author: Eduardo Portillo Gómez.

Expert Lawyers in Parental-Filial Measures, Divorces, Settlement Agreements | In Diem: Malaga, Marbella, Seville, Madrid, Las Palmas de Gran Canaria, Almeria, Huelva…

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