Joint custody. The interests of the child prevail

The different family courts and tribunals are increasingly more inclined and favourable to grant joint custody as long as it is more advantageous for the interests of the child.

The Supreme Court in a recent decision of 28 January 2016 has overturned a judgment in which the custody of the parties' common child had been awarded to the mother.

The reason that led to the adoption of this measure is based on the fact that in the proceedings it had not been proven that the stay of the child since the de facto separation with the mother and the extensive visiting arrangements of the appellant had been detrimental, and on the other hand, that joint custody was requested in the alternative, demonstrating that the appellant ruled out that only with joint custody would the priority interest of the child be adequately protected.

The Court does not see any negative reasons to deprive the child of combining custody between both parents, and does not consider that the child can be denied custody because he/she has requested this regime in a subsidiary manner to sole custody, when it is a measure that is more favourable to the interests of the child and of the parents themselves.

In the opinion of the High Court, the judgement under appeal petrifies the situation of the child due to the stability that he/she has at the moment, preventing the normalisation of relations with both parents. Not only is the child's adaptation not particularly significant, given his age, but it may also be detrimental in the sense that it prevents progress in relations with the father based on a measure that this Court has considered normal and even desirable, because it allows the children's right to relate to both parents to be effective.

The interests of the child undoubtedly require a greater commitment and collaboration from the parents so that this type of situation can be resolved within a framework of family normality that removes from the routine a merely formal relationship between the non-custodial parent and the children which, without the express collaboration of the other parent, ends up discouraging it.

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