Joint custody and joint guardianship in Family Law

Shared custody and guardianship is a very current legal situation as a result of the latest judicial pronouncements. Throughout 2013, the Supreme Court handed down numerous rulings and judgments establishing and outlining the different criteria for the attribution of shared custody of children in divorce proceedings, both contentious and mutually agreed, or in the adoption of paternal-filial measures (proceedings of unmarried couples with children).

The Family Court Judges consider that guardianship and custody is one of the functions that form part of parental authority and, consequently, does not imply a privileged status of the parent to whom it is granted in relation to the other parent. They also state that the responsibility of the parents for the offspring is joint and each of them assumes the position of guarantor of the child when the child is in their company.

The law firm G.Elias y Muñoz Abogados is a specialist in the application of the application for shared custody and guardianship, applying the latest case law of the Supreme Court in this respect.

The recent case law of the Supreme Court has established, as stated by our specialist lawyers, that shared custody cannot be denied solely on the basis of the poor relationship between the spouses or parents and the lack of a favourable report from the Public Prosecutor's Office. This is so because:

1. The report of the public prosecutor's office is not binding.
2. Because the poor relationship between the spouses does not necessarily prejudice the interests of the children.
3. Nowadays, shared custody and guardianship is not an exceptional measure, but should be considered desirable in the interests of the children, as it allows the children's right to relate to both parents to be effective, even in situations of crisis.

Guardianship and custody means entrusting the direct care of the child, cohabitation and continuous contact with him/her, to one of the parents, or to both, by agreement of the parents or by duly motivated judicial decision, upon request of the party, having regard to the report of the Public Prosecutor, which in the original wording of section 8 of Article 92 CC, introduced by Law 15/2005, of 8 July, must necessarily be "favourable", although the Judgment of the TC of 17 October 2012 declared this clause unconstitutional and null and void.

Furthermore, it should be borne in mind that shared custody and guardianship, the content of which, as is always the case in family law, has been developed through case law, is also motivated by the evolution of the concept of family, where parents have become increasingly more involved in the education of their children thanks to the reconciliation of work and family life, all principles that we defend at Family Lawyers Madrid.

Furthermore, the jurisprudence of the Supreme Court also pivots on the jurisprudence of our Constitutional Court. Thus, the ruling of 17 October 2012, which declared unconstitutional and null and void the "favourable" clause of the report of the Public Prosecutor's Office contained in Article 92.8 of the Civil Code. In other words, it is exclusively up to the judge or court to verify whether the legal requirements for applying the shared custody and guardianship regime are met. It is, therefore, the judge who, within the framework of the existing dispute between the parents, must assess whether or not such a measure should be adopted, considering what is the most beneficial situation for the child.

Therefore, shared custody and guardianship means the continuity of the fulfilment of the duties of the parents towards their children, with the consequent maintenance of joint custody and is, without doubt, the best solution for the child, as it allows them to continue to relate in the most reasonable way with each of their parents, being considered as the most normal measure, as this allows the children's right to maintain this relationship to be effective.

Consult our Lawyers in any of our Law Firms in Madrid who will advise you on shared custody and guardianship.