Attribution of use of the family home in case of shared custody Realistic

In Shared Custody Cases, Determining the Use of the Family Home

In terms of shared custody, one of the issues that causes the greatest controversy is the attribution of use of the family home, if there is no judicially approved agreement between the parents. In this article, we tell you what you need to know.

Our Civil Code does not contain any specific provision that attributes the use of the family home to shared custody.

In case of contentious divorce (without agreement of the spouses) the use of the family home is attributed according to the type of custody of the children.

Who is responsible for the use of the habitual residence in the event of divorce?

In the absence of an agreement between the spouses on the use of the family home :

In case of exclusive custody

In the event of  exclusive custody  by one of the parents ( paternal or maternal custody ), according to the provisions of the Civil Code:

In the absence of an agreement between the spouses approved by the Judge, the use of the family home and the objects of ordinary use in it corresponds to the children and the spouse in whose company they remain.

In case of split custody

In the case of  split or distributed custody, our Civil Code is established in the second paragraph of the aforementioned article:

When some of the children remain in the company of one and the rest in that of the other,  the Judge will decide what is appropriate.

In the case of shared custody

In the case of shared custody, which is the issue at hand,  the Civil Code does not contemplate the attribution of use of the family home.

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How is this lack of specific regulation resolved in the case of shared custody?

To resolve the legal absence, it would be necessary to resort to the provisions of the Civil Code for split or distributed custody.

As far as we are concerned here, it can be said that there is a certain similarity between split or distributed custody and shared custody.

In both cases, custody is exercised by both parents, not exclusively by one of them, through habitual coexistence with the children.

The difference lies in the  form and time of exercise of custody :

  • In split or distributed custody, the father exercises custody of one or more of the children and the mother of the remaining children, permanently.
  • In shared custody, the father and mother have custody of all the children, alternately.

The Supreme Court establishes that the use of the family home in shared custody will not be attributed indefinitely to the children or to one of the spouses. These are key aspects to take into account:

  • The attribution of the family home depends on custody. It makes sense when it comes to exclusive custody of one of the parents, but, in general, it does not make sense when we are faced with shared custody.
  • It is relevant to whom the home belongs, that is, whether it is a home owned by both parents or exclusive to one of them.
  • A temporary limitation can be established on that attribution and use of the home, which may no longer be indefinite, based on the transition of the parent who does not have rights over the home under debate.

What factors will the Judge take into account to attribute the use of the family home?

  1. The interest most in need of protection: In judicial decisions, the best interest of the minor will take precedence over any other legitimate interest that may arise. Although, it is also considered which of the two spouses is the most in need of protection, based on the following factors :
    • The financial resources of the parents.
    • The possibility of one of the parents living in a private home.
    • The possibility of selling the family home and acquiring two decent homes.
  2. Ownership of the family home. That is if it belongs to both parents, one or a third. Based on these factors, four modalities of attribution of the family home can be distinguished in cases of shared custody.
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Modalities for attributing the use of the family home

1. Attribution of the use of the family home to the children or to both spouses for alternate periods

In this case, the children will always remain in the family home and it will be the parents who move to live in the family home during the periods in which they have joint custody.

In this case, during the period of non-coexistence, each parent must have another address to live in.

2. Exclusive temporary attribution of the common family home to a single-parent

Exclusive temporary attribution occurs when the economic situation of one of the parents does not allow them to occupy another home suitable to cover the needs of the children.

However, the right of children to reside in adequate housing must be guaranteed when they live with the other parent.

3. Exclusive temporary attribution of the private family home to the non-owner spouse

This attribution is justified when the spouse who does not own the home is the one most in need of protection and to facilitate the exercise of shared custody in the same town, if the spouse who owns the home has the possibility of living in another home in the same town.

Non-attribution could mean that the non-title spouse would have to go to live in another city, which would prevent the exercise of shared custody.

4. Exclusive attribution of the use of the private family home to the titular spouse

It is the way to respect the property rights of the parent who owns the home, as long as the non-owning parent can live in a decent home during the period of cohabitation.

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In the event that the family home belongs to a third party (ancestor or relative of a parent), it is recommended not to attribute the use of the home to any of the parents.


1-How do you deal with a controlling co-parent?

Set clear boundaries, communicate through formal means, and request court-ordered intervention if needed when dealing with a controlling co-parent in custody disputes.

2-Should divorced parents spend time together with their child?

While not necessary, child experts encourage divorced parents to spend occasional brief time together with children to model healthy parenting and strong family relationships.

3-How do you deal with emotionally split custody?

Manage emotionally split custody by allowing your child to freely express themselves without judgment, speaking positively about the other parent, cooperating on discipline issues, and being fully present during your own time.

4-What is the hardest part about co-parenting?

The most challenging parts of co-parenting tend to be disagreements over discipline, transitions between households, maintaining consistent rules and structure, and managing new relationships or partners.

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