Joint custody shall be awarded in the best interests of the child

Joint custody shall be awarded in the best interests of the child

The Supreme Court has established in a recent ruling that joint custody of minor children must be granted in the interests of the minor. Consult our specialised Family Lawyers.

According to a recent ruling by the Supreme Court, the criteria has been established regarding the interpretation of the requirements that must exist and be assessed in order to be able to agree, in the interests of the minor, the regime of shared custody and guardianship. The Supreme Court establishes that after the Constitutional Court's ruling 185/2002, of 17 October, the adoption of joint custody and guardianship no longer depends on the favourable report of the Public Prosecutor but only on the judge's assessment of the suitability of this measure in the interests of the child, the starting point being that joint custody and guardianship is not exceptional but should be the general rule as long as it is not harmful to the child, since "the maintenance of joint custody is undoubtedly the best solution for the child as it allows him/her to continue to have a stable relationship with both parents".

The Supreme Court ends by establishing that the adoption of the measure of joint custody, in addition to requiring a request from both parents or from at least one of them, requires not only that it is not detrimental but also that it is considered convenient for the interests of the child, for which several criteria must be met, for which several criteria must be met, such as, for example, that the minor so expresses, the fulfilment by the parents of their duties in relation to the children and mutual respect in their personal relations, the result of the legally required reports and, in short, any other criteria that would allow the minors affected to lead an adequate life.

The judgment, for which the judge Seijas Quintana was the rapporteur, studied the position of the Provincial Court of Alicante -which denied the shared custody regime in a case of conflict after a divorce-, which refused to establish a shared custody regime arguing that it is "something exceptional", showing an initial position against this regime and considering "as problems what are virtues of this regime such as the requirement of a high degree of dedication by the parents and the need for a great willingness of the latter to collaborate in its execution".

Furthermore, the Supreme Court criticises the fact that it did not base its decision "on the interests of the child, to which it makes no allusion, and which must necessarily be taken into account in disputes over shared custody and guardianship". Therefore, the Chamber upholds and annuls the appealed judgment only with regard to the denial of joint custody of the couple's minor daughter, although it upholds the Court's decision to deny it because joint custody was not requested by either of the parents and because none of the aforementioned requirements were met.
 

Source: G.Elias y Muñoz Abogados Madrid