Types of custody after divorce

One of the essential steps during divorce proceedings in Spain with children is to determine what type of custody and guardianship will be applied to the children. Obviously, the circumstances of each couple are different, which is why the legislation provides for different types of custody depending on the case. Here we would like to review all of them to help you understand them all.

The 4 types of custody in force in Spain

In Spain there are, as the title of this section indicates, four types of custody. Let's look at them in detail.

Single-parent custody

It is still the most common in Spain, although it is gradually being displaced by shared custody, which we will analyse a little further on. Specifically, single-parent custody is where only one of the parents is responsible for the daily care of the minor children. This can be the mother or the father. However, it is the woman who is chosen in most cases as the custodial parent.
In any case, the custodial parent, unless otherwise agreed by the judge, is entitled to the use of the family home and to manage the maintenance payments for the children. This must be paid, without detriment to a possible compensatory pension, by the non-custodial parent, i.e. the parent who does not habitually reside with the children.
The non-custodial parent has four rights:

• Right of communication. You may communicate with your children by any means (telephone, WhatsApp, etc.) without limitation but taking into account the child's habits in terms of class and study schedule.
• Visiting rights. You may visit your children for a few hours one or two afternoons a week without the need for the child to stay overnight.
• Right to stay. You may be with your children for several days or weeks, even if this means that the child stays overnight at your home. We are talking, for example, about half of the school holiday period or alternate weekends.
• Right to information. The child will have to be informed of any relevant issues by educational and health institutions, as well as by the custodial parent. Let us not forget that, even if you do not have custody of your children, you maintain parental authority over them while they are minors.

Shared custody

More and more autonomous communities are urging judges to establish, whenever possible, a shared custody regime between the two parents. In fact, experts certify that it is the option that best protects the psychological well-being of children.

But what does joint custody imply? Basically, both parents will have the same rights and obligations regarding the custody of their minor children. This, beyond the expenses, refers to the periods of cohabitation, which are usually alternating (by months, quarters, semesters, etc.).

Obviously, it is essential that both parents live in the same municipality and at a relatively close distance from the school where the children attend school. In fact, it is not usually granted if one parent lives more than 30 kilometres away from the other. It is also important that they get on well together.

However, we should clarify that there are several types of joint custody that you should be aware of:

• With rotating residence of the children. Each parent has his or her own home and the children move from one home to the other depending on which one they live with.
• With a fixed address for the children. The children are always in the same home. In this case, it is the parents who rotate temporarily when it comes to occupying the family home.
• Cohabiting. The parents, despite being divorced, live together in the same home, so the children do not have to move.
• Equal period of stay. Each parent lives with the children for the same period of time as the other parent.
• Different length of stay. Children spend more time with one parent than with the other. This is often the case when one parent has to travel a lot for work, but still agrees to the divorce and joint custody arrangement.

But what happens in this case with the family home? Depending on the economic possibilities of both parents and the welfare of the minor children, the judge will decide whether to allocate its use to one of them, whether to force its sale for the acquisition of two other decent homes or any other applicable measure.

Custody attributed to a third party

This is a type of extraordinary guardianship and custody that can only be established on the basis of the interests of the child and not for any other reason. Generally, it is granted to grandparents, but the Civil Code, in Article 103, also speaks of other close relatives (financially emancipated siblings, aunts and uncles, etc.), unrelated persons who consent to it or institutions suitable for this purpose.
Obviously, this type of custody is only granted under extraordinary circumstances such as, for example, situations of abuse or family abandonment.

Split custody

Also called distributive custody and guardianship. It is very rare and can only be determined by a judge if there are justified reasons. The reason for this is that it is a type of child custody that involves the separation of siblings.
It is very difficult to find a situation that justifies this. To cite an example, we can talk about a 12 year old child refusing to live with the parent who has been granted single-parent custody. Or the possibility that one of the siblings has the opportunity to study abroad and only one of the parents can provide it.

Children's well-being comes first

Ultimately, for the children, each step in the divorce process is often quite painful. Therefore, when determining custody arrangements, judges often give absolute priority to the psychological and social well-being of the children. We hope we have clarified what each type of custody consists of and how to determine which one is in your best interest if you are separating from your partner.

If you need advice, we have a team of family lawyers who specialise in custody.