Supreme Court pronouncement on joint custody

The Constitutional Court ruled on joint custody in its Judgment of 30 October 2014.

Social changes, doctrine and the jurisprudence of the Constitutional Court and the Supreme Court have been considering that shared custody of minor children should be the norm and not the exceptional or extraordinary unless the rights and interests of the minors were left unprotected, that is to say, the bases of jurisprudence were changing and making way for a new model that favours the continuity of responsible parenthood and protects the right of minors to continue to have a real and effective father and a mother.

On 30 October 2014, the Civil Chamber of the Supreme Court surprisingly dismissed the Appeal in Cassation filed by the legal representation of the paternal parent, the speaker, Mr. Francisco Javier Arroyo Fiestas, considered that; "in the appealed judgement, the aptitude of both parents is assumed, but by reference to the court judgement, the situation of conflict is assumed to be detrimental to the interests of the child, which would advise against the adoption of the system of shared custody. This Court must declare that the premise of shared custody is that there must be a relationship of mutual respect between the parents that allows the adoption of attitudes and conduct that benefit the child, that do not disturb the child's emotional development and that, despite the emotional breakdown of the parents, a family frame of reference is maintained that sustains the harmonious growth of the child's personality".

At first sight, the aforementioned Judgment is surprising and may lead us to contradict the criterion that the Supreme Court has been imposing, however, if we analyse the decision carefully, we can see that there is coherence with the previous Jurisprudence.

In each and every one of the judgments handed down by the Supreme Court, in order to determine the suitability of joint custody, the relationship that the parents had with each other and with their children has been taken into account, maintaining at all times the benefit of the child as the main requirement.

The Court understands that a responsible shared custody cannot be carried out if the parents are not able to maintain a relationship of mutual respect between them, and that, although in a single-parent custody it is not possible to keep the children apart from the existing parental disputes, what is certain, is that joint custody must be based on fundamental principles for the physical and emotional development of the children, maintaining at all times, as the Supreme Court Judgment of 30 October 2014 states, a family frame of reference that supports the harmonious growth of their responsibility.

In conclusion, and despite the fact that we are faced with a judgment that denies joint custody and therefore deviates from the line followed by the Supreme Court, it only confirms that the protection and interest of the child will always be maintained as the fundamental axis for the granting of joint custody and guardianship.