Shared custody after separation or divorce: everything that matters

After a separation or divorce, either by mutual agreement or by court decision, parents can follow a shared custody regime over their minor or incapacitated children. This means that both have the same rights and obligations in this regard. It is a figure that is regulated in article 92 of the Spanish Civil Code and in the so-called "shared custody law". We would like to talk to you about this here.

Preliminary issues to consider

Many people tend to confuse the concept of guardianship and custody with that of parental authority. However, they are not synonymous. Here we will explain the differences:

• Guardianship and custody. This is a concept that focuses on the daily and habitual cohabitation with the minor children once separation or divorce has taken place.
• Parental authority. This refers to the general representation of the minor or disabled child, as well as the administration of his or her assets until he or she reaches the age of 18. It is obtained by the mere fact of being a parent of a child, although it is true that a judge can deprive it in certain circumstances.

Normally, as long as there is no gender-based violence or other similar factor involved, both parents retain parental responsibility for the children. However, the usual cohabitation may be with one or both parents. The first case is known as single-parent custody. The second is known as joint custody.

What is joint custody?

It is a regime adopted after a separation or divorce that establishes that the minor or disabled children will reside with each of the parents for the same amount of time. That is to say, the cohabitation is attributed to both parents under identical conditions and rights. It is typified in Article 92 of the Civil Code and in Law 7/2015, of 30 June, on family relations in cases of separation or break-up of the parents. It is more popularly known as the "shared custody law".

Generally, in the separation or divorce agreement, the conditions that regulate this type of custody are established. It is normal for children to spend exactly the same amount of time with their parents. In fact, it is usual for the time to be divided into fortnights or months, although there is quite a lot of freedom in this respect as long as both parents spend the same amount of time with the children.

Figures of interest

Only a few years ago, the single-parent or sole custody model, where only one parent lives with the minor child, was the predominant option. However, this is becoming less and less the case, as official data show.

In 2019, the last year for which there are records compiled by the National Statistics Institute (INE), sole custody is at 62.5% of the total, while shared custody has reached an all-time high of 37.5%. It would not be surprising if, in the next few years, the situation were to change.

In recent years, several autonomous communities have developed laws and regulations with the aim of boosting the shared custody option. This is the case, for example, of the Basque Country, Navarre and Catalonia. But why? Experts in pedagogy and child psychology claim that it is the most beneficial alternative for the child. And, at the end of the day, what a large part of the separation or divorce process is about is safeguarding their rights.

It is true that these laws give priority to the regime of shared cohabitation. However, this does not mean that the judge or the parents cannot agree on a single-parent custody arrangement if the circumstances are suitable.

What is joint custody and when is it agreed?

Now that you know what joint custody is, it is time to explain when and how it is agreed or decided. There are several situations that can arise.

In the middle of divorce or separation proceedings

That is to say, the drafting of the regulatory agreement for shared custody is established during the legal process of separation or divorce of the parents. This can occur due to different circumstances.

Agreement between the parents

Both parents of the minor children talk and request the adoption of a joint custody agreement. This can occur both in divorces by mutual agreement and in contentious divorces.

It should be noted at this point that the final decision will always be taken by a judge, who will be in charge of determining whether or not shared custody is appropriate. To do so, he or she will take into account a series of factors:

• The report provided by the Public Prosecutor's Office.
• The opinion of the minor children who are capable of expressing a judicious opinion. Generally, the opinion of those who have reached the age of 12 is taken into account.
• Possible allegations made by the parents.
• Details of the evidence taken that it considers appropriate.
• Assessment of the relationships that the parents have with their children and with each other.
• Specialist reports, if requested by one of the parties or ex officio.
• Previous attitudes of the parents towards the children. Here we can also include the fulfilment of the duties of both parents in the past.
• The number of children in the couple's possession.
• Any other factor or element that may be useful to ensure that, once the regime is adopted, the children will live properly and their rights will be respected.

From experience we know that the adoption of this type of cohabitation regime is more complicated the younger the age of the child. In this sense, many specialists do not recommend its adoption when there are children under 7 years of age, as they are much more vulnerable to the marital crises of their parents.

Furthermore, in the case of infants, shared cohabitation is directly impossible as they need to be in permanent contact with their mother. Therefore, the rotation that we will talk about later on is not feasible.

Judge's decision

It is not very frequent. In fact, it should be considered exceptional. However, there are cases of joint custody judgments where there is no agreement.

The judge may determine that joint custody is the option that best protects the interests of the child. For this, the only requirement is that one of the parents requests it and that there is a favourable report from the Public Prosecutor's Office.

One nuance. If you take a look at Article 92 of the Civil Code, you will soon realise that this cohabitation regime is described as "exceptional". However, according to the Supreme Court Judgment of 29 April 2013, it should not be considered as such. Rather, it should be labelled as normal. A sign that reflects the changing times.

After separation or divorce

Many parents believe that the agreement they have signed after separation or divorce is irremovable. At least as far as the custody regime is concerned. However, this is not the case. Either of them can apply for a change regardless of how much time has elapsed since the agreement was signed.

In order to proceed with the change, one or both parents (if mutually agreed) must initiate a modification of measures procedure. Obviously, when both parents have spoken and negotiated beforehand, everything is much simpler as it will be sufficient to present a new agreement that specifies this type of custody and that complies with the legal precepts. In the event that only one of the parents wants this, a contentious process will be initiated that will put the decision in the hands of a judge.

This is particularly common among parents who initially agreed to a sole custody arrangement with their partner. However, realising that their children have grown up, they want to spend quality time with them without being confined to alternate weekends and single days during the week.

This process has to be initiated and developed in the Family Court that corresponds to the domicile of the child. It is quite similar to that which must be followed to modify or terminate alimony and/or compensatory payments.

Having said that, it should be noted that, for the Supreme Court, "reasonable differences" between the parents do not make the adoption of a shared cohabitation regime unfeasible. Neither does the existence of conflicts between the parents. However, as long as they do not harm the children involved.

Types of joint custody in Spain according to the place where the children will reside

We can distinguish between three alternatives:

• Children's fixed abode. This means that the children will always reside in the same dwelling, which is usually the one that both parents shared when they were still married and living together. Therefore, it is the parents who rotate. For example, imagine you enter into such an arrangement with your partner. On the first of the month, you move in and she moves out. Then, on the first of the month, you say goodbye and she comes in for the next month's rent.

• Rotating residence of the children. In this case, it is the children who move out after the agreed period of time has passed. This is undoubtedly the most common option, but also the most uncomfortable for the children. For this reason, judges usually take into account that the children can remain in the same school and maintain their friendships despite the change of residence.
• Coexistence. This is the least common scenario, but it can occur. Specifically, it refers to couples who, once separated or divorced, continue to live in the same home (for example, one upstairs and one downstairs).

In the event that the children's rotating domicile option is chosen, there is a problem to be taken into account. Like any other person, the children can only be registered at one address. However, they will reside equally in two.

What is done in such cases? Generally, judges leave it up to the parents to decide where to register their children. However, if they do not agree, the judge will decide after a report from the Public Prosecutor's Office. This decision will always be made with the child's welfare and comfort in mind.

Types of joint custody in Spain according to the length of time spent with each parent

In this case, the criterion to be taken into account is not the domicile of the children, but the time they will spend with each of their parents. There are two alternatives:

• Equal period of stay. This type provides that each parent will spend exactly the same amount of time with the child. Depending on the interests of the child, the periods will be weekly, monthly, quarterly, etc.
• Different length of stay. One parent will spend more time with the children than the other. However, this is an exceptional situation that can be explained, for example, by the parent having to travel regularly for work. The former option is always preferable, but this can also be the case.

Alimony and the shared living together regime

After learning what joint custody is and what the different types of custody are, it may seem logical to you that its adoption would automatically eliminate the obligation to pay maintenance to the other parent. However, he is mistaken.

According to the doctrine of the Supreme Court, the adoption of such a cohabitation regime after separation or divorce does not prevent the judge from establishing a system of alimony in favour of one of the parties. However, in order to do so, it is necessary to establish that it has been particularly disadvantaged by the break-up and that an imbalance has arisen between the parties.

There is a logic to this. For example, why would a mother with no income not be eligible for joint custody if at the time she decided to have a child with her partner they both agreed that she would give up her job to focus on caring for the child? Obviously, this decision, now that the separation or divorce has taken place, has left her in a much more vulnerable situation than her partner.

Due to the progressive insertion of women in the labour market, this situation is becoming less and less common. So much so that the abolition of alimony is practically the norm. If both parents have a stable job and a similar amount of income, the judge will only oblige them to pay the child's expenses in equal shares.

Therefore, with the exception of the above example of shared custody in the case of a mother with no income, we can say that the obligation to pay child support is practically non-existent.

Is it possible to withdraw the shared custody regime?

Earlier we mentioned that one or both parents can request the modification of the regulatory agreement to adopt the model of shared cohabitation in substitution of sole custody by one of the parents. This means that the effects of any divorce or separation can be modified. Therefore, the process can also be reversed.

The factors that may determine that the judge decides to terminate this model of cohabitation are the same as those mentioned above. That is to say, those based on the legal principle of favour filii (interest and opinion of the minor, report of the Public Prosecutor's Office, etc.). Generally, the situation arises when one of the two parents does not fulfil his or her obligations as set out in the agreement, which places greater responsibility on the other parent.

Conclusions

In short, the adoption of a regime of shared cohabitation with minors or disabled children through the separation or divorce agreement is an increasingly common option in Spain. This is not surprising considering that, more and more frequently, both parents have an active professional life and there is greater awareness of the importance of spending quality time with their children.

Clearly, this is a more convenient option for both parents and children than the sole or single-parent custody model. This is because, on the one hand, it divides responsibilities between the parents. On the other hand, children suffer less from the consequences of separation as they spend more time with both parents and it is possible to organise their lives so that they maintain their social relations.