SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
3.2 Living/Contact Arrangements and Child Maintenance Parental Responsibility and Custody Article 156 of the Civil Code states that both parents have the same parental responsibility and must agree on the child’s upbringing, such as schooling, medical treatment, religion, holidays, etc. In case of dispute, either parent can issue a proceeding and the judge, after having heard both parents and the child (man ‑ datory for children older than 12 years), will issue an order stating which parent can decide on this specific matter. The parental responsibility matters of Article 156 are urgent proceedings on family law that must be heard in court within a month. Parental responsibility will not be affected by a divorce. In Spain, “rights of custody” refers to “paren ‑ tal responsibility” for both parents. When they cannot agree on an issue, they must take the matter to a court, which will issue an order stating which parent decides on this specific matter. The court must decide at the time of the divorce which parent the child lives with (physical custody) and which parent has the “right of access”. There is no difference between married or unmarried parents in the exercise of rights of custody. The legal approach now to (physical) custody is that joint custody subsequent to post-marital separation is the optimal solution to safeguarding the “interests of the child”. Law No 15/2005, of 8 July, amending the Civil Code and the Civil Judicial Proceedings Act in matters of separation and divorce, introduced joint custody into the Spanish Civil Code. According to Article 92 of the Civil Code, judges could henceforth order joint custody even without the agreement of both parents. The court must automatically make a child arrange ‑ ments order on divorce. The Ministerio Fiscal must be invited to the divorce proceedings to protect the child’s best interests. Members of the Ministerio Fiscal represent the Spanish authorities’ protection of the child’s best interests. The Ministerio Fiscal co-oper ‑ ates closely with the court and has a similar education and professional background as a judge; however,
members of the Ministerio Fiscal are not independent because they are Spanish government civil servants. A parent can also request the court to order interim measures regarding maintenance, custody, access rights and use of the family home until the divorce decree is produced. Children’s orders can be made until the children are 18 years old. Normally, however, they stop at the age of 16 because, at this age, it is purposeless and counter ‑ productive to oblige a child to visit or live with a parent if they do not want to. A father who has been accused of violence against his spouse/partner cannot be granted his children’s custody by the court on divorce or separation. Child Support Content of child support Article 142 of the Civil Code provides for child mainte ‑ nance, such as food, clothing, housing, health assis ‑ tance and education. Each parent will support their children according to their wealth and income. Proportionality test The amount of child support must be proportional to the parent’s wealth and income and the child’s needs and circumstances (Article 146 Civil Code). The judge will check the proportionality test on a case-by-case basis. Calculation of child support The petitioner must provide the court with evidence regarding the child’s costs, such as school fees, schoolbooks, extra-curricular activities, clothing, housing, etc. Each parent must also inform the court about their income and wealth, with the aim of cover ‑ ing the child’s necessities. Apart from the monthly child support, each parent will bear the cost of 50% of the following. • Extraordinary expenses – construed as expenses that are exceptional, unforeseeable, necessary and appropriate to the financial capacity of both par ‑ ents, as well as expenses due to illness, eyeglass ‑ es, dental or hearing prosthesis, or any other health
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