Difference between parental authority and guardianship and custody

When we are faced with the divorce or separation of a couple with children, the concepts of parental authority and custody always come to the fore. The problem is that, on many occasions, we do not know how to differentiate between them and we use them wrongly. This is the reason why here we are going to explain the meaning of both in detail.

What is the meaning of parental authority?

In Spain, parental authority is both a right and a duty that parents have towards their minor children. Specifically, it refers to the capacity they have to decide the fundamental aspects of their lives.

Even in the event of divorce or separation of the couple, both parents will share parental authority over the child. This means that, in order to make any important decision in their lives, it will be necessary for them to reach an agreement.

An example to better understand the concept of parental authority

Imagine a 10-year-old child with an oral health problem. When his mother takes him to the dental clinic, the specialist determines that there are two possible treatments: one involving maxillofacial surgery and the other conservative.

The mother cannot decide on her own which treatment is to be applied to the child, but will have to agree on it with the father, as she shares parental authority with him. It would be a different matter if she were deceased or if she had lost this right and duty by a court decision.

Is it possible to lose parental authority in Spain?

Article 169 of the Civil Code stipulates that parental authority is lost naturally when:

• The child is emancipated from the family nucleus.
• The child is adopted by another person or couple.
• The child or the parent dies.

However, Article 170 also stipulates that parents may lose parental authority over their child if a judge so determines by a court decision. The decision must always be based on the protection of their interests. It can, however, be restored in the future if the cause for the deprivation disappears.

For example, in the case of a divorce where there has been domestic violence, the judge may determine that the father loses parental authority over his children.

The meaning of guardianship and custody

Now it is time to explain what it means to have custody of a child. Specifically, this concept, which is regulated in article 92 of the Civil Code, refers to the daily, everyday and routine care of the children. In other words, which parent lives with the child.

This is the most important difference between parental authority and guardianship and custody: in order to carry out the actions involved, it is not necessary to have the permission of the other parent.

An example to better understand the concept of guardianship and custody

An inherent task of the custodial parent would be to wake the child in the morning, serve breakfast and take the child to school. As this is a routine and obligatory task, but not a major decision for the child's present and future, it can be carried out without the explicit permission of the other parent.

Types of guardianship and custody in Spain

In Spain there are four types of custody and guardianship regulated. However, in the vast majority of cases, the first two are chosen, which we are going to mention below. These are:

• Single-parent. That is to say, it is exercised by only one of the parents. This is called the custodial parent, who will be responsible for the day-to-day life of the child. On the other hand, the non-custodial parent will have the obligation to pay maintenance and will be able to exercise his or her rights of visitation, communication and stay.
• Shared. This is becoming more and more frequent to the detriment of the previous one. In this case, both parents share the responsibility of caring for the children equally. It can be exercised in a fixed or rotating domicile and for equal or different periods of permanence.

As mentioned above, there are two other types of guardianship and custody. In the first place, we have to mention the split or distributive custody, which is the one whereby a certain number of children go to live with one parent and the rest with the other. Given that judges give priority to the siblings maintaining their emotional bond, this occurs in very few cases.

The other typology is called third party guardianship and custody and only occurs in cases of abuse, family abandonment, etc. It is usually held by the grandparents. It is usually held by the grandparents, although it can also be exercised by other close relatives, other persons close to the family or an institution.

So what is the difference between parental authority and custody?

We have already seen it in the previous lines, but we would like to make a short summary of the main differentiating elements:

• Matters concerning parental custody of the child must be decided by agreement of both parents. With custody and guardianship matters, this is not necessary.
• Both custody and guardianship are based on daily cohabitation. Parental custody only has to do with matters of importance in the child's life.

Hopefully, after reading this article, it is perfectly clear to you what the difference between parental authority and custody is. However, if you still have any doubts or if you are facing divorce proceedings, do not hesitate to contact a family lawyer. There is no one better placed to advise you and defend your rights.