JOINT CUSTODY
He cried out to heaven for a jurisprudential change in line with the evolution of society.
In this day and age it seems unimaginable that a parent, whether father or mother, cannot enjoy their children in the same way as before the breakup, just because the relationship has ended.
Until not so long ago, when the relationship between the parents broke down and there were minor children, in divorce proceedings the custody and guardianship of children
by default was awarded to only one of the parents. This changed as a result of the Supreme Court Ruling of April 29, 2013, which overcame the exceptional nature with which joint custody was contemplated and established a list of criteria for assessing the appropriateness of its application.
However, the lower courts were reluctant to adopt shared custody as the desirable custody model, and our high court had to pronounce again on the matter and did so in its last judgment (STS 194/2016, of March 29), where I emphasized the importance of the Courts respecting its doctrine for the sake of legal certainty, because we are facing “a system in need of a homogeneous solution by the Courts to similar matters”.
Thus our high court in repeated judgments, SSTS February 4, 2016; February 11, 2016; March 9, 2016; 433/2016, of June 27, REITERATES that shared custody should be the normal and desirable regime, because it allows the children’s right to relate to both parents to be effective, even in crisis situations, provided that this is possible and a series of requirements are met.
REQUIREMENTS FOR IMPLEMENTATION
Among the requirements repeatedly set forth by the Chamber, it requires a request from both parents or only one of them, and it also requires a finding that this measure is not detrimental but convenient for the interests of the minor, taking into account the following circumstances:
– Past practice of the parents in their relations with the child and their personal skills
– The wishes expressed by the minors that may be heard by the Court,
– The fulfillment by the parents of their duties in relation to their children,
– The mutual respect of the parents in their personal relationships, being desirable the existence of a cordial relationship between both,
– The result of the legally required reports, prepared by the Psychosocial Team attached to the Court hearing the case,
– And, in short, any other, provided that the best interests of the minors are safeguarded and prioritized and that it allows them to lead an adequate life. It should be emphasized that the criterion of the Supreme Court with respect to the shared custody regime establishes that the decisions on this matter must be based on the interests of the minors who will be affected by the measure to be taken, indicating that this regime cannot be allowed to be adopted as an exceptional measure, but on the contrary, it should be considered normal and even desirable.
The aim of the shared custody and guardianship regime is to bring this regime closer to the model of cohabitation existing prior to the marital breakdown and at the same time to guarantee their parents the possibility of continuing to exercise the rights and obligations inherent to parental authority or responsibility and to participate on equal terms in the development and growth of their children, which also seems to be the most beneficial for their children.
ADVANTAGES IN THE ADOPTION OF SHARED CUSTODY:
a) The integration of the child with both parents is encouraged, avoiding imbalances in the time of presence;
b) The feeling of loss is avoided;
c) The suitability of the parents is not in question;
d) The cooperation of the parents is encouraged, for the benefit of the child, which has already been developing efficiently.
Therefore, if you are in a process of divorce or separation with the existence of minors in the relationship, we recommend that you let yourself be advised by our lawyers, who will try to achieve the best results for both parties and above all the welfare of the child in this unknown process for him.
