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Can I opt for a joint custody?

The unfortunate reality of parental conflict and separation has given rise to difficult situations concerning the raising of children. In Spain, this panorama has been complicated to an even greater extent in recent months, due to the recent case law established by Spain´s Supreme Court.

It has generally been understood that the legal figure of joint custody is the most beneficial manner in which a child, whose parents have separated, can be raised, as it insures continuous contact with both parents. joint custody involves awarding custody of a child or children to both parties in a legal dispute, ensuring that both mother and father are considered “custodial parents”, neither of them being considered to have less or more rights than the other.

This figure marks a shift in legal considerations operating in European countries prior to the late twentieth century. While children in the nineteenth century were considered in most legal systems to be the property of the father, the shifting patterns of family life that resulted from the industrial revolution gave rise to an increase in maternal rights and influence during the twentieth century, the “tender years doctrine” being a prime example of this shift. It became, and continues to be common that a mother acquires sole custody of a minor, the father being relegated to the position of “non-custodial parent”.

Given the frequency of such Echoes of this outlook can be found in the recent Spanish Supreme Court Decision, reached on the 27th of May before the Civil Chamber.

This decision was adopted in response to an appeal, in which the father requested joint custody, rejecting allegations that his delicate financial situation made him unfit to be a joint-custodial parent and showing his willingness to move house in order to be close to his daughter and keep up continuous contact with her.

The father´s defense had alluded to consistent case law, favourable to joint custody, denouncing a clear infringement of article 92 of Spain´s Civil Code, which established the interest of the child as the guiding principle in cases of this type.

What should you do in order to get joint custody?

The Supreme Court, however, was adamant that the “concrete circumstances of the case” ought to be the guiding criteria for any decision taken. Controversially, the Court´s main objection to joint custody appears to be the existence of a “situation of conflict” between the parents, which, according to the Court, is sufficient to establish that the interests of the child would not be served under a system of joint custody.

In the “situations of conflict” between separated mothers and fathers, it remains to be seen whether this new criterion will lead to greater difficulty for fathers in achieving their custodial rights. It may even become the case that one party simply alleging or creating such a conflict could allow them to effectively curtail the possibility of joint custody.

Careful examination of the ever-changing case law surrounding custodial rights leaves no doubt as to the need for experienced legal assistance in these matters and, at Lexland Lawyers, our seasoned professionals would be delighted to give you a first consultation free of charge. Do not let unresolved doubts stand in the way of your parental rights.