The Justice Minister has announced that Article 92 of the Spanish Civil Code is to be changed so that judges hearing a divorce in Spain may award joint custody of any children where the interest of the children require it, and not merely in ‘exceptional circumstances’. The amendment ought to be in place within six months.
Once passed, the legislative change will mean that it will be for the judge presiding over cases of separation or divorce to determine the best method of ensuring that the children have both parents present in their lives. This could mean awarding custody to just one of the parents, or may involve the children spending a similar proportion of time with both parents.
The minister responsible for the change commented that it was the responsibility of the Executive arm of the government to reflect changes in society, one of which was the equal responsibility that both parents have for the upbringing of their children.
In this respect he said that Article 92* of the Civil Code was a reflection of past rigidities in the roles played by parents with respect to their children and also stated that it was necessary for the language used in the relevant Article to be brought up-to-date such that instead of using the phrase “guardianship and custody” there should be the phrase “cohabitation of the parents with their children”.
*Article 92 (Child custody Spain) preserves the children's rights to be heared by the court and keeps responsability on parent's shoulders even after divorce.
The change will therefore give judges in Spain much more discretion to award joint custody than has occurred in the past where it could only be awarded in exceptional circumstances such as where the mother of the child was deemed not be capable of looking after the children alone.
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1. Current Legal Position
The law in Spain states that following the end of a marriage that custody of the children may by awarded to either parent. Although there have been recent developments that suggest the judiciary is beginning to apply more weight to the role of the father in the upbringing of the children (see Shared custody of children in Spain), in approximately 95% of cases, custody is awarded to the mother of the children.
In Spain, in order for the custody of younger children to be taken from the mother, it would be necessary to demonstrate some type of incapacity on her part to look after them. However, once the children are 13 years of age (or less if they demonstrate sufficient maturity) they will be heard by the court before any judgment is made that will personally affect them.
It may be the case of course that the spouses come to an agreement between themselves that sets out the custody of the children, including the visitation rights of the spouse who does not take custody. This would have to appear in the divorce agreement. Assuming that the agreement does not put any child at risk, the judge will ratify such an agreement.
In the absence of an agreement, the court will take the following factors into account:
- Brothers and sisters should not be split-up
- The emotional requirements of the children
- The closeness of other relatives to the children (grandparents etc.)
- The ability of one or other of the parents to better look after the children
- Whether either of the parents has an addiction or other psychological condition
But the factor that tends to carry most weight is the dedication of each parent towards the children before the breakdown of the marriage. It is for this reason that the courts almost always award custody to the mother. However, changes are afoot with the arrival of ‘shared custody’ in Spain.
2. Shared Custody
While technically only considered a possibility under the Law of Divorce of 2005, shared custody has been considered an exception and traditionally awarded in a minority of cases. This is changing however, and there is an increasing tendency by the Autonomous Communities in Spain to enact legislation compelling judges to consider awarding shared custody of children following a divorce.
The award of shared custody involves both parents more directly in the upbringing of the children. It does not necessarily mean that the children spend 50% of the time with each parent or that the parents necessarily must move in and out of the matrimonial home every six months, as has been suggested.
It has been defined as “ the shared assumption of authority and responsibility by separated parents of common children that permits the children the possibility of counting on both parents…of really having both a mother and a father…”.
3. Shared Custody to be Promoted
The Justice Minister at the time - Alberto Ruiz-Gallardón - announced that Article 92 of the Spanish Civil Code was to be changed so that judges in divorce proceedings may award joint custody of any children where the interest of the children require it, and not merely in ‘exceptional circumstances’.
Once passed, the legislative change has meant that it is for the judge presiding over cases of separation or divorce to determine the best method of ensuring that the children have both parents present in their lives. This could mean awarding custody to just one of the parents, or may involve the children spending a similar proportion of time with both parents.
The minister responsible for the change commented that it was the responsibility of the Executive arm of the government to reflect changes in society, one of which was the equal responsibility that both parents have for the upbringing of their children.
In this respect, he said that Article 92 of the Civil Code was a reflection of past rigidities in the roles played by parents with respect to their children and also stated that it was necessary for the language used in the relevant Article to be brought up-to-date such that instead of using the phrase “guardianship and custody” there should be the phrase “cohabitation of the parents with their children”.
The change will therefore give judges in Spain much more discretion to award joint custody than has occurred in the past where it could only be awarded in exceptional circumstances such as where only the mother of the child was deemed not be capable of looking after the children. The measure may therefore do much to remedy a perceived deficiency in father's rights in Spain.
4. Child custody Spain: Ministerio Fiscal
The ‘Ministerio Fiscal’ is a court official who is present in any court case where children are affected. In preparing their influential report on how the judge should decide on matters relating to the children, the Ministerio Fiscal will consider the views of the parties to the divorce proceedings, the views of the children, any expert views available as well as any other relevant criteria such as age, schooling and how settled the children are in their current location.
Also, relevant is the current relationship between the parents and as between each parent and their children, as well as the resolution of each parent to carry out their parent responsibilities and the possibility of reconciling family and any work responsibilities. This new measure is accompanied by other provisions that will affect a number of aspects of the post-divorce relationships and responsibilities, as follows:
5. Parental Plan
Similar to existing requirements in Autonomous Communities that have authority to implement their own version of Civil laws – such as Cataluña – any parents now transmitting divorce proceedings must also present a ‘parenting plan’ that will set-out the manner in which the children will be cared for with regard to custody and education and other aspects of the children’s well-being.
The judge may approve the plan or order the parents to attend mediation in an attempt to resolve any differences. But the bedrock shall be that the authority to make decisions regarding the children’s upbringing shall be jointly exercised by both parents.
6. Domestic Violence
The law will be changed to prevent any person who has been convicted of domestic violence offences from being awarded custody of the children.
Likewise, although there may have been no official complaint, if a court has found that there is well-founded evidence that such a crime has been committed and the judge agrees in the course of the proceedings that there is well-founded evidence of domestic violence, then custody of the children may be denied to the relevant party.
7. Dissolution of the Family Economic Unit
A major cause of conflict between the parties to a divorce tends to be the resolution of the financial relationship. The new law will make it necessary, upon the initiation of divorce or separation proceedings, to draw-up an inventory of the matrimonial assets so that they may be distributed according to agreements of the parties or order of the court.
Once the proceedings have been initiated, the couple will no longer be considered to be a single economic unit, and so no debts can be accrued by one party on behalf of the other.
8. Visitation Rights of Grandparents
Grandparents' visitation rights have been historically forgotten within divorce proceedings: It is probably an obvious error from a human perspective, but Law is often left behind as society moves on.
But Law also moves on: The Supreme Court has decided that neither poor relations nor a lack of any understanding between parents and grandparents can justify denying the grandparents access to their grandchildren. Accordingly, a visitation schedule should be established to provide for contact and communication between the grandparents and the child in the case before the Court despite the poor relations between the mother and grandmother of the child.
The appeal was brought by the grandparents of a child against the decision of the High Court in Seville. The Sevillian court had refused to establish a visitation schedule so that the grandparents could maintain contact with the child on the basis of the young age of the child (three years old) and the poor relationship between the parents and the grandmother of the child.
According to the High Court, 'the dire relationship between the grandmother and her daughter could have negative repercussions on the development and stability of the child,' The Court believed that should the relations between the parents and grandparents improve and when the child was somewhat older, that 'a desirable system of communication between the grandparent and the child could be established'.
9. Article 160 of the Civil Code
In considering the matter the Supreme Court considered the meaning and extent of Article 160.2 of the Civil Code which states: It is not permitted to impede, unless there be just cause, the interpersonal relationship between a child and his or her grandparents. It therefore becomes necessary to determine exactly what 'just cause' means.
According to the Supreme Court, 'just cause' does not mean circumstances where the parents and grandparents of the child simply do not maintain good relations. Moreover, it does not mean where there is no understanding or agreement as between the two parties.
The Supreme Court felt that there had been no definite explanation given as to how or why, in the case before it, the child would suffer any negative repercussions as a result of the poor relations between the parents and the grandmother and labelled that argument as merely speculative, in the absence of any demonstration to the contrary.
In this respect the Court did highlight the fact that the right of the grandparents to enjoy contact and communicate with the child could be suspended or limited if any ill will was shown by the child to the mother that could be attributed to the relationship with the grandmother.
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10. Frequently Asked Questions
How does custody work in Spain?
In Spain, custody arrangements can be sole or shared, with courts prioritizing the child’s best interests based on emotional bonds, parental involvement, and stability. In regions like País Vasco, Navarra, Aragón, Cataluña, and Comunidad Valenciana, shared custody is the preferred default arrangement, reflecting local legal frameworks that emphasize co-parenting. Courts may still deviate from this preference when circumstances warrant, ensuring decisions suit the child's welfare.
What if a child doesn't want to live with a parent?
In Spain, a child’s wishes may influence custody decisions, especially if the child is mature enough to express informed preferences. Courts consider these preferences alongside factors like safety, emotional well-being, and stability. If a child resists living with one parent, judges may involve psychologists or social workers to assess the situation. In cases of younger children, indirect methods such as counseling or supervised observation may be used to understand their feelings. Ultimately, decisions prioritise the child's best interests.
What is the minimum child support in Spain?
The minimum child support in Spain, known as the "vital minimum," typically ranges from €150 to €200 per month. This amount is intended to cover a child's basic needs, such as food, clothing, and essential care. However, the exact amount may vary based on factors like the parents’ financial situation and specific regional standards. Courts aim to ensure that children receive adequate support while considering the income of both parents.
What is the new family law in Spain?
The Law for the Protection of Families with Greater Needs for Parenting Support, part of Spain’s new Family Law (Ley de Familias), introduces a broader concept to replace "large family." This legislation now includes previously recognized large families and expands to cover single-parent families with two children. It aims to provide enhanced protections and support for families with increased caregiving responsibilities, reflecting Spain’s commitment to inclusivity and family diversity.
