SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
3.3 Other Matters Article 156 of the Civil Code says 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 hearing both parents and the child (mandatory for children older than 12 years), will issue an order stating which parent can decide on this specific mat ‑ ter. The parental responsibility matters of Article 156 of the Civil Code are urgent proceedings on family law that must be heard in court within a month. The Constitutional Act No 1/2004 of 28 December on Integrated Protection Measures Against Gender Violence was promulgated to combat male violence against women, and, as a result, Spanish law contains a variety of mechanisms that target male violence. As a consequence, a father accused of violence against his partner will not have his children’s custody and eventually, neither will he be able to have the right of access to his children. Although both the govern ‑ ment and the General Council of the Judiciary have taken a stand against the deployment of the parental alienation syndrome in the legal system, this notion is used in family courts. Allegations of parental aliena ‑ tion and those of “false complaints” are made in an attempt to falsify denunciations of gender violence. They argue that women manipulate children or press charges falsely in order to: • benefit from the opportunities of the law; and • obtain custody of the children in question; or • even stop the parents from having visitation rights to their children. The Sentence TS:2016:129 of the Supreme Court rejected the appeal of a father who requested a change of custody in his favour based on the alleged existence of parental alienation. Although the Sen ‑ tence did not reject parental alienation in itself, the Supreme Court confirmed that there was no evidence that the children in question had suffered from paren ‑ tal alienation, dismissing the father’s claim. However, there is no clear jurisprudence against parental aliena ‑ tion. The courts will check parental alienation allega ‑ tions on a case-by-case basis, supported by strong evidence and the forensic psychologist’s report.
expenses not covered by the public health system under the Social Security, which has this charac ‑ ter, provided that the parent who intends to make the expense consults the other parent beforehand about the convenience or need of the expense (except in exceptional and urgent cases where it is not possible to inform the other immediately of the emergency event and the amount of the extraordi ‑ nary expense). If there is no consent, the petitioner must seek judicial authorisation. • Extra-curricular activities – if there is an agree ‑ ment on them. In the event of failure to reach an agreement, the parent who has chosen them will be liable. Examples include summer camps, sports and dancing lessons. The Spanish General Council of Judges’ online portal provides a table to calculate child support by entering the parents’ monthly incomes. Payment obligation The payment obligation starts on the date the appli ‑ cation for child support is lodged in court (Article 148 Civil Code). The parties can’t agree on child maintenance arrange ‑ ments without the court’s involvement because any child arrangement must be approved by the judge and the public prosecutor ( Ministerio Fiscal ), who protects the child’s best interests. The court can order child maintenance until the child turns 18 or until the child is financially independent. The court can also terminate the child maintenance obligation if the supporting parent can prove that the young adult is neither studying nor seeking a job. The child cannot apply for financial provision them ‑ selves until they turn 18 years old. An adult can make a claim for financial support directly against their par ‑ ents when they are older than 18 and the child main ‑ tenance obligation has ended. The court will take into account the reasons and circumstances that force the adult to make a financial claim (eg, unemployment) and the parents’ resources.
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