SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
There is no difference between married or unmar - ried 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 safeguard - ing 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 separa - tion 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 arrangements 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 inter - ests. The Ministerio Fiscal co-operates closely with the court and has a similar education and professional background as a judge; however, members of the Ministerio Fiscal are not inde- pendent because they are Spanish government civil servants. A parent can also request the court to order interim measures regarding maintenance, cus - tody, 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 purpose - less and counterproductive 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 maintenance, such as food, clothing, housing, health assistance, and education. Each parent will support their children according to their The amount of child support must be propor - tional to the parent’s wealth and income and the child’s needs and circumstances (Article 146 Civil Code). The judge will check the proportion - ality test on a case-by-case basis. Calculation of child support wealth and income. Proportionality test The petitioner must provide the court with evi - dence 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 covering the child’s necessities. Apart from the monthly child support, each par - ent 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 parents, as well as expenses due to illness, eyeglasses, dental or hearing prosthesis, or any other health 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
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