SHARED CUSTODY IN SPAIN

In the event that parents separate, divorce, split up or do not live together, all the rights and duties regarding minors belong to both parents and they should be legally recorded.

Whatever your situaion is, we provide the needed legal assistance and support through out the process.

WHICH TYPES OF CUSTODY ARE IN SPAIN?

There are 2 different types of custody in Spain:

• custody in favour of one of the parents (“custodia monoparental”)
• Shared guardianship (“custodia compartida”)

• “custodia monoparental”: If custody is in favour of one parent, the other progenitor will have the right to visit and to stay with the minors during specific periods of time during the week and weekend.

• “custodia compartida”:  If shared custody, children live with one and with the other parent alternately for the same period of time each month.

In both custodies, neither parent can move with their child without the consent of the other parent. In this case, the parent who wants to relocate with his or her child must initiate proceedings for the modification of measures in which a judge will decide whether it is in the best interest of the child to relocate or not.

WHAT IS THE PROCESS TO OBTAIN CUSTODY IN SPAIN?

If parents get divorce or split up in Spain, parental responsibility and child custody will be set in one of these documents:

• “Convenio regulador”: It is a legal document, similar to a contract, where parents agree about custody and specific regulations regarding minors. It is called mutual agreed divorce proceeding.The Regulating Agreement must be approved by the Court for effectiveness.

• Court decision: It happens when measures from minors are adopted by the judge due to the lack of agreement between parents. It is called Contentious divorce. In both cases, the assistance of a lawyer is required.

In both cases, the assistance of a lawyer is required.

WHICH ARE THE BENEFITS OF SHARED CUSTODY?

We need to point out that shared custody is considered the most normal measure, as children have both parents present in their lives.

Shared custody affords the effectiveness of the right of the children to have a relationship with both parents. However, the main point is the ‘interests of the child’, so shared custody will not be agreed if one of the parents do not meet the criteria (i.e.: issues such us dedication of the parents with the children, their personal aptitude, work of the parents, whether the addresses are close or not, and the wishes of the children… will be taken into account in order for the Judge to settle the custody)

It should also be pointed out that shared custody may be agreed between parents, and it is only a matter for the court to consider when agreement has not been reached. Parents must agree to any arrangement between themselves that does not damage the children.

WHAT DOES THE SUPREME COURT CONSIDER ABOUT SHARED CUSTODY?

Spanish Supreme Court stablished in 2011 that shared custody should be considered as the common and most normal family measure.

Moreover, Supreme Court manifested that the main issue when deciding about the future of the children after a matrimonial rupture is to watch over minor’s best interests.

IS POSSIBLE FOR A NON-RESIDENT TO OBTAIN CUSTODY IN SPAIN?

The answer is yes!

Spanish courts can grant custody of a child of non-resident parents, if it considers it to be the best interest for minors.

IS POSSIBLE TO MODIFY CUSTODY IN SPAIN?

The answer is also yes.

In order to modify a custody agreement in Spain, a modification of measures procedure must be carried out at Court. It is necessary to submit a lawsuit for modification of measures if there is no agreement between parents.

It is important to highlight that the parent who wants to modify the measures MUST justify and proof the reasons why they must be changed. The modification cannot be taken if it is only a wish or an individual decision. It must be a reason to change the custody measures (i.e.: unemployment, new address location, etc).

WHAT HAPPENS IF A PARENT VIOLATES THE CUSTODY OR VISITATIONS IN SPAIN?

The other parent can initiate Court proceedings in order to force the parent to meet the agreement or sentence.

NOTE:  Whether the option is taken, the assistance of a lawyer will be required.

Do not hesitate to contact REUTERS SOLICITORS for free information.

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