Keys to the custody of children
Before the enactment of laws in some Autonomous Communities on aspects of family law, the truth is that there is some confusion between the concepts of Guardianship and custody of children, Patria Potestad, Custodia Compartida and Regime of Visits, terms that are generated when the couple dissolves after a separation or divorce and it is necessary to legalize the situation of the children to guarantee their well-being.
Parents' parental authority
The custody is the set of rights and obligations that parents have over their children, until they reach the age of majority or are emancipated. Parents with their signature or consent must decide on all issues that affect their children: educational line, school and / or extracurricular activities, purchases, sales, etc.
The custody it is always exercised jointly by both parents, without any of them being able to decide unilaterally. If there is a conflict between the parents in any aspect of the life of the children, they must go to a specific judicial process that exists for that purpose and the judge will decide who of the parents is deciding what is the most correct for the minors in that conflict.
The care of the children or the Guardian and Custody
Another important concept in family law is that of Guard and Custody, which refers to an obligation that includes exclusively the daily care of children in aspects such as food, clothing, hygiene, punctuality and school attendance. The rest of decisions are the object of Parental Rights and must be adopted by mutual agreement by the parents.
The Guard and Custody can be exercised by both parents, is the Shared Custody, being called then Stay arrangements the time that parents spend with their children. The Guard and Custody can be exercised by only one of the parents, in which case the time that the non-custodial parent spends with his children is called Visiting schedule.
Legal system in Spain
The Spanish Civil Code gives preference to the exclusive custody of a single parent, although it accepts the shared one as long as both parents agree or if it proves that it does not harm the interest of the minor.
The Custodia Compartida is treated by the Civil Code as something exceptional, however, the current tendency of the Courts throughout Spain is to bet on the guard and shared custody.
The Spanish Civil Code governs all the Autonomous Communities except those of Aragon, Catalonia, Navarra and Valencian Community. In these communities they have their own law that establishes the custody and shared custody as the basic system, reversing the requirements of proof, because in these communities can only be denied the shared if it is proven that it harms the child and not the other way around, as in the case of other Communities where the Common Civil Code governs.
In the Autonomous Community of Navarre, the Law does not opt for any of the two forms of custody, although it regulates them and establishes shared custody as the preferred option, unless it is proved that the exclusive is more convenient. Although for years these laws have been in force in Aragon (2011), Catalonia (2010), Navarre (2011) and Valencian Community (2011) and despite the advances in the matter, we are still reluctant in some courts to grant the custody and shared custody, to persist in the judges the test criteria set by the Common Civil Code.
Sonia Frouchtman and Berta Molina, attorneys from the Department of Family Law and Successions of the Escura Law Firm