Article 94 of the Civil Code: Question of Unconstitutionality

Limitation and suspension of the right to visitation and stay

1.- Introduction

The presiding judge of the Court of First Instance 7 of Móstoles, Natalia Velilla, has raised a question of unconstitutionality regarding the fourth paragraph of Article 94 of the Civil Code, as it establishes “automatically” a sanction of a civil nature as a consequence of criminal proceedings.

2.- The case

The father of a minor child requests the Court to suspend custody in favor of the mother, as a consequence of the mother having been reported by him to an Investigating Court for allegedly maintaining inappropriate behavior and having struck him.

Therefore, pursuant to the fourth paragraph of Article 94 of the Civil Code, the visitation or stay regime of the minor with the mother would be suspended, despite the fact that in the Investigating Court where the complaint for domestic violence against the mother is being investigated, no interim measure has been adopted as it is considered that there is no risk to the minor.

3.- Article 94 of the Civil Code

This was reformed. In its wording in force until September 3, 2021, it established that the parent who does not have the minor or incapacitated children with them shall enjoy the right to visit them, communicate with them, or have them in their company, with the Judge determining the time, manner, and place of exercising this right.

Until September 3, 2021, the Judge had the possibility to limit or suspend the right to
visitation and stay in the indicated cases. But from that date, the article was modified and displaced the legal position established until that date regarding the right to visitation and stays.

Article 94 of the Civil Code, as reformed, establishes the following:

“The establishment of a visitation or stay regime shall not proceed, and if it existed it shall be suspended, with respect to the parent who is involved in criminal proceedings initiated for attempting against the life, physical integrity, freedom, moral integrity, or freedom and sexual indemnity of the other spouse or their children. Nor shall it proceed when the judicial authority notices, from the parties’ allegations and the evidence presented, the existence of well-founded indications of domestic or gender-based violence. However, the judicial authority may establish a visitation, communication, or stay regime in a reasoned resolution in the best interest of the minor or in the will, wishes, and preferences of the adult with disability in need of support and following an evaluation of the parent-child relationship situation.”

4.- Consequence of the reform

The new wording of this article presents a main consequence, which is that it prevents the Judge from establishing a visitation and stay regime, and obliges them to suspend the one that had been previously determined.

This gives rise to the understanding that the fundamental right to the presumption of innocence, contained in the Universal Declaration of Human Rights, Article 11, is not being respected, which establishes that every person accused of a crime has the right to be presumed innocent until proven guilty, in accordance with the law and in a public trial in which all necessary guarantees for their defense have been ensured.

A second consequence that may arise is that it may favor abusive use of the regulation, because the time that the parent who has been reported may remain without the right to visitation or stay with their children is not determined, so this may be favorable for parent-child, economic, or patrimonial measures that are yet to be determined to be decided in favor of one parent.

5.- Question of Unconstitutionality

It is for this reason that the presiding judge of the Court of First Instance 7 of Móstoles understands that the fourth paragraph of Article 94 of the Civil Code violates the right to the presumption of innocence. Therefore, she raises a question of unconstitutionality, considering that the regulation establishes practically “automatically” a sanction of a civil nature as a consequence of criminal proceedings.

The Magistrate also raises the possible violation of Article 10.1 of the Spanish Constitution, which enshrines the right of minors to the free development of their personality. She also raises it with respect to Article 14, which establishes that Spaniards are equal before the law.

The new wording of Article 94 raises practically unanimous criticism among specialists. Cristina Díaz-Malnero concludes that “The problem is wanting to put all family situations in the same basket and solve them with the same criterion, when each case is a world of its own”

Author: Ángela Victoria Cantizano de la Rosa

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