Guardianship and custody: everything you need to know

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Custody is the care, cohabitation and assistance of minor children after a marriage annulment, separation or divorce of the parents. Also known as legal custody, guardianship and custody is a regime that includes aspects such as food, clothing and education. It can be carried out by both parents, known as joint custody, or by one parent only, known as single-parent custody. The custody regime is regulated in article 92 of the Spanish Civil Code. Read on for more details on this regime.

What is the difference between guardianship and custody and parental authority?

It is important to distinguish the concept of guardianship and custody from that of parental authority, as they may seem to be the same concept at first glance. Specifically, the latter consists of the set of rights and obligations of the parents, irrespective of whether they are married or not. In addition, parental authority includes the administration of the property and the general representation of the minor children. Have you ever wondered whether the parent always has parental authority over the minor children? Yes, parents always have parental authority over their children, with the exception of cases determined by law in which a judge deprives them of parental authority.

However, in cases of marriage annulment, separation or divorce, parental authority is exercised by both parents jointly, while custody is attributed to one of them, or to both as joint custody. What happens when parents who are not married and have minor children separate? In this case, the custody procedure is used, which can be either mutually agreed or contentious.

Types of custody

In the following, we will list the details of the different forms of custody and guardianship:

  • One-parent or sole custody

In the case of single-parent custody, custody is exercised exclusively by one of the parents. In other words, living together and caring for the children is attributed to only one parent, even though both parents will maintain parental authority over the minor children. You may wonder what happens to the parent who does not have custody. The non-custodial parent is obliged to pay child support, without prejudice to any maintenance allowance that may be due to the other parent. In addition, the non-custodial parent is entitled to a visitation regime, which is established by mutual agreement or by the judge.

  • Shared custody

The second form of custody is joint custody. This is when both parents live together and take care of the children in alternating periods of time. Whenever possible, and whenever it is in the best interests of the child, this type of custody is agreed. However, joint custody is not agreed when one of the parents is involved in a criminal case, either for an attack on the life, physical or moral integrity, freedom or sexual indemnity of the children or of the other parent. Shared custody is also not agreed if, in the light of the evidence and allegations of the parties, there are well-founded indications of domestic violence.

  • Split or distributive custody

This type of custody arises when the children live separately from each other, with different parents. In other words, not all the children are in the custody of the same parent. Although this type of custody is an atypical case, it can occur if there is an agreement between both parents. As mentioned above, the judge always takes into account the interests of the child, and therefore tends to seek the unity of the family, and not to distance the siblings.

  • Third-party custody

Custody by a third party involves the attribution of custody to a third party other than the parents. This type of custody is very exceptional, only when the causes are sufficiently serious for the child to be better protected by a third party. In such cases, preference is usually given to grandparents, relatives or other consenting persons. If there are no grandparents, relatives or other suitable persons to exercise the guardianship and custody of the child, the function is entrusted to an institution under the authority of the judge in charge.

How is the type of custody chosen?

The choice of the form of custody is determined by mutual agreement between the parents or by a judge at the request of one of the parents in the case of divorce. If the choice is made by a judge, certain criteria must be taken into account before a decision is made in order to avoid harming the children as much as possible. The aspects to be taken into account are:

  • The age of the minor children.
  • The number of children.
  • The domicile of the parents.
  • The interests of the children.

Did you know that decades ago judges used to award single-parent custody to the mother? Nowadays, and already in recent years, there has been a considerable increase in shared custody and guardianship, as it is generally considered the best option. This is the case in Catalonia, Navarre and The Basque Country, where legislation is currently being passed through provincial civil laws to consider joint custody as a preferential option.

As we mentioned recently, the interests of the child must always be taken into account first and foremost. It is up to the judge to understand whether the child’s interest necessarily coincides with his or her will, or whether it is influenced by one of the parents. In the case of a contentious divorce, the rights of the children prevail, and if they are older than 12 years, judges usually take their statement at the request of the lawyer of one of the parties.

If you still have any doubts, contact us so that we can advise you. At Blegal we are the law firm that meets all your needs. The best advisors and lawyers are available to you online and in person.

Photo by Brian Gordillo on Unsplash

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