Shared Custody in Divorces. Legal Advances in its Application

From the Family Department of our Law Firm, we would like to echo a legal figure, shared custody, which is currently gaining strength as the best option for children after the break-up of their parents, either by divorce or separation, given that this system tends to favour the continuity of motherhood and fatherhood, protecting the right of children to continue to have a real and effective father and a mother.

We cannot ignore the existence of certain social conditioning factors that have altered the traditional criteria for the attribution of custody and guardianship of children, attributed in the past to mothers as a general criterion, and which was initiated with the reform of the Civil Code promoted by Law 15/2005.

The determining factor when awarding custody is the aptitude of each parent to carry out the essential functions of caring for their children, irrespective of their sex.

The positive recognition of shared custody and guardianship is based on the principle of joint family responsibility which, in turn, conceives of both parents as equally capable of being involved in parental functions and, in particular, in the tasks of caring for the children.

However, we cannot ignore the fact that case law is currently laying the foundations and paving the way for joint custody. For some years now, there has been a process of revision of the previous guidelines, which is, in short, what Law 15/2005 intended to reflect and which includes the latest judgments handed down by the Supreme Court and the Draft Bill on the exercise of joint parental responsibility in the event of annulment, separation and divorce, taking into account the Organic Law 3/2007, of 22 March, for the effective equality of women and men, which transposes the Community Directive 2002/73/EC on equal treatment between men and women. This LOIE recognises the right to a work-life balance and the promotion of greater co-responsibility between women and men in the assumption of family obligations.

On the other hand, we must also bear in mind the recognition of the children's right to co-parenting, which consists of guaranteeing the continuation of the children's affective relationships with both parents.

Finally, we would just like to point out the advantages of shared custody and guardianship:

• It is the system that most closely adheres to the principles of co-responsibility and the right to co-parenting.
• Shared custody maintains the validity of two adult models vis-à-vis the children.
• Shared custody is the modality that with the least difficulties rescues and preserves the living situation of the child prior to the break-up.
• Shared custody reduces the separation between the children and the non-custodial parent, and the feeling of "mourning" produced by the separation of the non-custodial parent.
• Shared custody avoids psychological disturbances.
• Shared custody can enrich the social, emotional and family life of the child.
• Shared custody has economic advantages.
• Shared custody reduces the hostility of children towards their parents' second partners.
• Shared custody eliminates the communication and living arrangements that give rise to many conflicts.

In the family area of our Law Firm, we have lawyers specialised in all issues related to shared custody.

Contact any of our law firms in Madrid where we will be happy to assist you.