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The 2005 reform of divorce law in Spain introduced the concept of joint custody (Spanish: custodia compartida), subject to the agreement of both parents.
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The Joint Custody Law in Spain
The 2005 divorce law (Law 15/2005) introduced an important novelty with the possibility of joint custody, although this is subject to mutual agreement of both parents. Such agreement is given only in a minority of cases. Therefore, in practice, most divorces still entail sole custody, usually by the mother.
Joint custody, also called co-parenting or parental responsibility, has been defined as "the legal situation under which, in cases of separation or divorce, both parents exercise legal custody of their minor children, on equal terms and with equal rights".
Joint custody is intended to fulfill the provisions of the Convention on the Rights of the Child, proclaimed by the General Assembly of the United Nations on November 20, 1989 and ratified by Spain on November 30, 1990, which requires states to respect the child's right to maintain personal relations and direct contact with both parents on a regular basis, unless it is contrary to the interests of the child.
In Spain, the custody of children after a separation is governed by art. 92 of the Civil Code, as amended by Law 15/2005, of July 8, in terms of separation and divorce. This article considers the joint custody regime, although the possibility of agreement distinguishes joint custody by agreement of the parents (Article 92.5) when requested by parents in the proposed regulatory agreement, when both reach this agreement in the course of legal proceddings (Article 92.8). Exceptionally, even without such agreement, the judge, at the request of either party and with a favorable report from the Public Prosecutor, may agree to shared custody, on the basis that this is the only way to adequately protect the interests of the minor.
In no case shall joint custody be granted if either parent is the subject of criminal proceedings initiated by endangering the life, physical integrity, freedom, moral integrity or sexual freedom and integrity of the other spouse or the children who live with both, nor proceed when the judge gives notice of the claims of the parties and the evidence presented, the existence of founded suspicion of domestic violence.
Therefore, despite the reform, unless joint custody is taken by mutual agreement of the parents, joint custody remains an exceptional measure, which requires a favorable report of the prosecution and which is based only on protection of the interests of the child, which makes the practical application of this rule very restrictive.
However, in recent months the situation seems to be undergoing a change in many courts. A recent Supreme Court decision, dated July 7, 2011, recalls that the starting point when deciding on the future of the children following the breakdown of marriage is to protect their interests: among them the previous practice of parents in their relationship with the child, their personal abilities and wishes of children.
It should be understood that the wording of Article 92 "can not conclude" that joint custody "is an exceptional measure", but that "on the contrary, should be considered normal, is effective because it allows the right of children to interact with both parents, even in crisis situations, wherever possible."
Differences between communities
Some autonomous communities, such as Aragon, Catalonia, Navarra and Valencia have specific legislation regarding joint custody. The fundamental difference is that in the regional legislation promotes the option of joint custody as general or preferred option. Unlike the Civil Code, does not require the agreement of the parties, nor the report of the Public Prosecutor in this way circumvent two vetoes were often impossible to apply in practice the option of joint custody.
Aragon
Law 2/2010 of Equality in Family Relations-regulation in which pioneered Aragón-favors from the first time after a separation or divorce are regulated as preferred joint custody of both parents in front of the exclusive always studying the case and seeking the good of the child.
Catalonia
Catalan Law, which came into force on January 1, 2011, provides for the preferential nature of joint custody, but will not be granted by default, and if there is no agreement between the parents, the judge will decide which of the two assumes the "guardian" of the minor children. When couples with children become divorced or separated will be required to file with the court a "parenting plan" which included proposals from each parent regarding custody of the children and their participation in the upbringing and education.
Valencian Community
In Valencia, the law 5/2011, was approved in the Valencian Parliament on March 23 and began applied on 5 May that year. Contemplate shared coexistence as a rule in the absence of agreement between the spouses, without any obstacle opposed by a parent or bad relations between them, dictating the first judgments on the matter. However, the Prime Minister appealed the constitutionality of the law before the Constitutional Court, and this rule is suspended for a period of five months, which has created a serious legal uncertainty in an area as sensitive as this, shortly expected to be raised suspension and the law is applied normally.
The Regional Law 3/2011, of March 17, on child custody in cases of breach of the coexistence of the parents, which came into force on 28/06/2011, notes that: "The current regulation contained in the Civil Code, but includes joint custody, it becomes exceptional practice in cases in which there is no agreement of parents, conditioning them to the favorable report of the Public Prosecutor. This Act seeks to correct these assumptions Foral, in line with current social reality, betting that the decision taken on the custody of minor children, where there is no agreement between the parents, care for the interests of children and equality of progenitors".