Joint Custody: What Is It and How Does It Work?
The joint custody It is one of the most common and sought-after solutions in cases of separation or divorce involving minor children. This arrangement seeks to balance the responsibilities and time that both parents devote to caring for their children, so that the children can maintain a close relationship with both parents. In Alicante, and in Spain in general, joint custody is governed by the Civil Code and has been the subject of various legislative amendments over the years.
What is joint custody?
The joint custody It means that both parents share equally in the time spent with their children and in making important decisions about their children’s lives. Rather than one parent having sole custody and the other only visitation rights, joint custody aims to ensure that both parents remain involved in their children’s daily lives.
It is important to note that joint custody does not necessarily imply a 50% split of time, but rather is tailored to the specific needs of the children and the circumstances of the parents. This arrangement is adapted to work schedules, the distances between homes, and, above all, to what is deemed in the best interests of the child.
How is joint custody established?
The process for establishing the joint custody It may vary depending on whether both parents agree on its implementation or whether a judge must decide the matter. In Alicante, as in the rest of Spain, judges always prioritize the child’s well-being above all else.
The Inclusion of Joint Custody in Legislation
Joint custody was incorporated into Spanish law through the Law 15/2005, of July 8, which amends the Civil Code and the Code of Civil Procedure with regard to legal separation and divorce. This law amends Article 92 of the Civil Code, opening the possibility of joint custody.
Its application is set forth in the articles 92.5 and 92.8 of the Civil Code:
«Article 92.5: »Joint custody of the children shall be granted when the parents request it in the proposed settlement agreement or when both parents reach this agreement during the proceedings."
«Article 92.8: »Exceptionally, even if the conditions set forth in paragraph five of this article are not met, the judge, at the request of one of the parties and based on a report from the Public Prosecutor’s Office, may order joint custody on the grounds that this is the only way to adequately protect the best interests of the child.”
The Valencian Law on Joint Custody
For a period beginning on May 5, 2011, the following was in effect in the Valencian Community: Law 5/2011 of April 1, enacted by the Generalitat, on the family relationships of children whose parents do not live together. This law established that the regime of joint custody That would be the general rule.
«In his Article 5.2, it was established: »As a general rule, both parents shall share joint custody of their minor children, and neither the opposition of one of the parents nor a strained relationship between them shall constitute an obstacle to this.”
Years later, this legal text was repealed in its entirety by the Constitutional Court, on the grounds that the Valencian Regional Government lacked the authority to legislate on this matter. However, since the implementation of this legal text—which was later overturned—the vast majority of proceedings in the Valencian Community were governed by joint custody, a model that was applied almost without exception and which, moreover, proved highly successful in practice.
Support from the Supreme Court
The Supreme Court has issued several rulings in favor of joint custody, considering it the preferred model for ensuring the well-being of children. This trend reinforces the success of this arrangement and its widespread adoption in many separation and divorce proceedings.
Mutual agreement
The easiest way to establish joint custody is for both parents to reach an agreement. This agreement can be set forth in a regulatory agreement, which details the time the children will spend with each parent, financial responsibilities, education, and other aspects important to the children’s well-being. In this case, the judge will review the agreement and, if he or she considers it fair and in the best interests of the children, will approve it.
Court ruling
When it is not possible to reach an agreement, a judge will determine the custody arrangement. In making this decision, the judge will consider a number of factors, including:
- The emotional bond between children and each parent.
- Each parent's ability to care for the children.
- The proximity of both parents' homes.
- The parents' job and financial stability.
- The opinions of minors, if they are old enough to express them.
Advantages and Disadvantages of Joint Custody
Advantages
Among the advantages The following are among the advantages of joint custody:
- Children maintain an ongoing relationship with both parents, which promotes their emotional stability.
- Both parents share daily responsibilities, which prevents either of them from becoming overwhelmed.
- It encourages collaboration and dialogue among parents, which can reduce conflicts.
Disadvantages
However, there are also some drawbacks that should be taken into account:
- Constantly moving can be stressful for some children, especially the youngest ones.
- It requires good communication and cooperation between parents, which isn't always easy to maintain after a separation.
- In some cases, there may be differences in parenting styles, which can cause confusion for the children.
When is joint custody not recommended?
Although the joint custody Although it is the preferred approach in many cases, it is not always the best option. There are situations in which it is not recommended, such as:
- When one parent is unable to adequately care for the children, whether due to health problems, addiction, or financial instability.
- If the parents are in a state of high conflict that prevents any kind of cooperation or dialogue.
- In cases of domestic violence, where the safety of one of the parents or the children is at risk.
Carlos Baño Law Firm
The joint custody It can be an excellent option for ensuring the well-being of children following a separation, provided the right conditions are in place for its implementation. It is important that both parents be willing to cooperate and that the arrangement be tailored to the children’s needs.
If you are considering filing for joint custody in Alicante or if you have questions about your situation, at the Carlos Baño Law Firm, we can provide you with legal advice and help you find the best solution for your family.
