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Shared Custody

In the Contentious Divorce proceedings before the Family Courts of Spain, there is great controversy regarding Joint Custody for both spouses or to be exercised exclusively by one of them.

To this date, and based on Spanish statistics, the granting of a Shared Custody was something "unusual" or as they say in the Jurisprudential slang "exceptional"

However times are changing, and with it the statistics, and in these procedures, as established by the Civil Code itself, and the numerous jurisprudence on the matter, the Judges to dictate their sentences, should be guided by what is called the "favor filii "or what is the same, the best interests of the child. To be able to demonstrate the same, the work of the good Lawyer comes into play.

According to our Legislation, joint custody can be granted by the Judge when it has been requested by both spouses by mutual agreement or at the request of a single member of the couple, as established in Article 92.8 of the Civil Code, being necessary in this case the Report Previous of the Ministry of the Prosecutor, which, as recently established by the Constitutional Court, does not have to be favorable. Having therefore the character of non-binding and may not be compromised the judge's verdict of the result thereof.

To demonstrate the inherent right of the children to interact with both parents and the relationship that existed between both parents with the child before separation to assume custodial duties, is key to obtain a ruling in our favor.

From the study of Comparative Law it is inferred that the previous practice of the parents with the minor and their personal aptitudes is taken into account. This being the case, if the system that until now governed the couple, has worked correctly, especially when the children themselves are adapted to it and being beneficial for them, then why change it.

Vision that has to be defended, proven, transmitted and finally and after a good job, reflected in the Resolution dictated by the Judge.

It should never be generalized, and establish a Shared Custody applicable to all cases, but for those in which to decide otherwise, it would be a great injustice and a great prejudice for minors, with damages impossible or difficult to repair.

Meritxell Fernández-Riego Sánchez
        Abogada Col. 88947 Ilustre Colegio de Abogados de Madrid

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