As a family lawyer in Spain, I often encounter parents seeking to understand the intricacies of joint custody and the criteria that tribunals consider when making such decisions. Joint custody, known as “custodia compartida,” has become an increasingly common arrangement in Spain, reflecting a societal shift towards recognizing the benefits of both parents being actively involved in their children’s lives post-divorce or separation. Here, we will delve into the essential criteria that Spanish tribunals consider when determining joint custody.
Legal Framework for Joint Custody in Spain
Joint custody in Spain is governed by the Spanish Civil Code, particularly Articles 92, 93, and 94, which provide the legislative basis for how custody decisions are made. The overarching principle guiding these decisions is the best interest of the child, a concept that prioritizes the child’s well-being above all else.
Key Criteria Considered by Spanish Tribunals
- Parent-Child Relationship:
Tribunals closely examine the relationship between each parent and the child. They consider the emotional bond, the time each parent has spent with the child, and the quality of care provided. A strong, positive relationship with both parents is a critical factor favoring joint custody in Spain.
- Parental Cooperation and Communication:
Effective communication and cooperation between parents are paramount for joint custody to succeed. Tribunals assess the willingness and ability of parents to collaborate on decisions affecting their child’s upbringing. If parents demonstrate a history of constructive communication and conflict resolution, it supports a joint custody arrangement.
- Child’s Wishes:
Depending on the age and maturity of the child, their preferences may be taken into account. Spanish law allows children to express their views, and tribunals consider these opinions, particularly for older children capable of making reasoned decisions -over 12 years old-.
- Parental Proximity:
The geographical proximity of the parents’ residences is a practical consideration. Joint custody is more feasible when parents live relatively close to each other, ensuring minimal disruption to the child’s routine and schooling.
- Parental Capacity:
Tribunals evaluate each parent’s capacity to provide for the child’s needs, including emotional support, stability, and financial security. This encompasses the parent’s work schedule, lifestyle, and ability to maintain a nurturing environment.
- Prior Agreements:
Any pre-existing agreements between the parents regarding custody and visitation might be taken into account. If parents have previously agreed on joint custody and have adhered to this arrangement, tribunals are more likely to formalize it legally.
- Absence of Conflict:
High levels of parental conflict can be detrimental to the child’s well-being. Tribunals prefer joint custody arrangements where parents can manage their disagreements without exposing the child to ongoing disputes.
- Expert Reports:
Psychological and social reports from experts play a crucial role in custody decisions. These reports provide an objective assessment of the family dynamics, the child’s needs, and the suitability of each parent for joint custody.
Conclusion
Navigating the tribunal criteria for joint custody in Spain requires a comprehensive understanding of various factors that influence the court’s decision. As a family lawyer, my role is to guide parents through this complex process, ensuring that the best interests of the child are always at the forefront. Joint custody, when executed with careful consideration and cooperation, can provide a balanced and nurturing environment for children, allowing them to thrive despite the challenges of parental separation.
If you are considering joint custody or need legal advice on custody matters, it is crucial to seek professional guidance tailored to your unique circumstances. Together, we can work towards a solution that best supports your child’s future.
Sandra Márquez
Lawyer & CEO Expat & Legal Spain