Traditionally and in general terms, in cases where a couple with children separate or divorce, Judges have tended to attribute the custody to the mother, together with the right of use of the family home, although parental authority is shared between the two parents, leaving shared custody to those cases listed in Articles 92.5 and 92.8 of the Civil Code. That is, cases where there is an agreement between the parties or at the request of one of the parties with a favorable report from the Public Prosecutor.

However, the Supreme Court has gone beyond the modification of the Civil Code that took place in 2005 and introduced the system of shared custody, changing doctrine in order to promote it, provided that it is in the best interest of the child. This general principle, known as favor filii, is the basic principle on which the Judge must base the decision of granting custody to one parent or to both. In accordance with this principle, the Courts take into account communication with parents, the location of the parent´s places of residence and the economic means of each parent in order to decide on the case.

The most recent jurisprudence of the Supreme Court has already incorporated some of the proposed amendments to the Spanish Civil Code included in the bill which is currently being passed by Congress regarding shared custody. In this sense, the Supreme Court has ruled that shared custody may be established when the Judge considers it beneficial for the child without the need for the approval of the Public Prosecutor.

Another of the amendments to Article 92bis is the need for the Judge to hear those children who are sufficiently aware of the process, when it is deemed necessary, either ex officio or at the request of the Public Prosecutor, the parties or even at the request of the child himself. Specifically , the judgment of the Supreme Court dated the 20th of October 2014 goes beyond the provisions of this Article 92 bis in the sense of establishing that children over 12 years of age should always be heard, as well as those children who, by virtue of their age and maturity are presumed to have sufficient judgment. Until the issuance of the judgment, whether or not to hear the child was left to the discretion of the judge who was hearing the case. However, since there is a clear contradiction between Article 92.6 of the Civil Code, which mentions that the child shall be heard when he has enough judgment and the judge deems it necessary and article 770.1.4º of the Code of Civil Procedure, which sets forth that the child must be heard if he is over 12 years old or if the Judge deems that he has sufficient judgment, the Supreme Court has ruled, in accordance with the Convention of the Rights of the Child, adopted by the UN General Assembly Resolution on the 20^th November 1989 and to which Spain is a signatory of as of the 30^th November 1990, that the child should express his opinions freely regarding those matters that are related to him, taking into account his age and maturity, being custody one of these matters.

It is by virtue of the above that the new doctrine of the Supreme Court establishes that shared custody ought to be considered normal, desirable and not exceptional, without the need to obtain a favourable report from the Public Prosecutor and with the obligation of hearing the child if he is over 12 or if he has sufficient awareness.

At Lexland Solicitors, our Family Law experts encourage you to ask for a free first consultation in order to provide you with legal advice on custody matters and to discuss the possibility of establishing shared custody.