SPAIN Trends and Developments Contributed by: Amparo Arbáizar, Arbáizar Abogados
Children’s Shared Custody in Spain Following the Spanish Supreme Court case law (STS nº15/2020 of 16 January), the High Court reiterates that in the absence of fundamental causes, the application of shared custody will proceed: “There is no cause in the procedure that advises against shared custody; therefore, it must be established. Article 92 of the Civil Code and the Supreme Court case law are violated since the interest of the affected minors has not been adequately safeguarded in a resolution that has not taken into account the parameters repeatedly established by the Supreme Court for the correct application of the principle of protec- tion of the minor’s interest to order sole custody, which in this case will not allow the daughters’ right to interact with both parents to be effec - tive.” “On the other hand, as this High Court has already said on numerous previous occasions, the Court does not care so much about the past as much as the present and the future if the father’s involvement was not as intense as the appellant wanted, or considered that it should have been, the opportunity for the father to do so is now, that is, through shared custody.” The Supreme Court recognises in its ruling of 29 November 2013 that the relationship between the parents is not a crucial factor in the applica - tion of this custody regime, and the fundamental thing is always to ensure the child’s best interest: “ The relationship between spouses alone are nei- ther relevant nor irrelevant to determine shared custody. They only become relevant when they affect, detrimentally, the interest of the minor ”. Shared custody is becoming the rule on a child’s arrangements at court, and the burden of proof
that it is not in the child’s best interest lies in the party that applies for sole custody. In this sense, the clear exception to the rule for shared custody is that a parent is involved in a criminal investigation for domestic violence or abuse as set out in Articles 94, 4 and 97,2 of the Civil Code: Article 94.4 of the Civil Code: “ The establish- ment of a visitation or stay regime will not pro- ceed, and if it exists, it will be suspended, with respect to the parent who is involved in a crimi- nal process initiated for attacking the life, physi- cal integrity, freedom, moral integrity or sexual freedom and indemnity of the other spouse or their children. It will also not proceed when the judicial authority notices, from the allegations of the parties and the evidence produced, the exist- ence of well-founded indications of domestic or gender violence. However, the judicial author - ity may establish a visitation, communication or stay regime in a resolution motivated by the best interest of the minor and after evaluating the situ- ation of the parent-child relationship.” Article 92. 7 of the Civil Code: “Joint custody will not apply when one of the parents is involved in a criminal process initiated for attempting to attack the life, physical integrity, freedom, moral integ- rity or sexual freedom and indemnity of the other spouse or the children. It will also not apply when the judge notes, from the allegations of the par - ties and the evidence produced, the existence of well-founded indications of domestic or gender violence. For these purposes, the existence of mistreatment of animals, or the threat of causing it, will also be considered as a form of controlling or victimising any of these people.”
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