Key Criteria for Obtaining Joint Custody of Children after Divorce or Separation

An issue that generates many conflicts between parents is the custody regime for minor children. Joint custody is one of the forms of child custody regime in the event of separation , divorce or breakup of a de facto couple .

In general terms, custody is the responsibility that parents have for the upbringing, well-being and education of their children.

Custody of the children may be attributed:

  • To one of the parents, in which case, we will be faced with single-parent or exclusive custody . The other parent will have rights to visit and have the children in her company.
  • For both parents, the child lives with both parents for alternating periods. In this case, we are dealing with shared custody .

The shared custody regime is the most used in recent years. According to our Supreme Court, the shared custody system is the normal and most desirable regime, whenever possible due to the circumstances of each case.

However, in practice, the judge does not always grant shared custody.

And as indicated by the General Council of the Judiciary in its recent Guide published on June 25, 2020 :

No custody model is inherently better or worse than another. The custody regime must be determined in each specific case after a detailed examination of the specific and particular circumstances of each family group and taking into account exclusively these particular circumstances. In any case, it is necessary to avoid general or stereotyped positions regarding the different custody models.

Shared custody does not imply an arithmetic distribution of time

It is also important to highlight that there is a false belief that shared custody necessarily means that children will spend the same time with each parent. 

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This is not true and is confirmed by the CGPJ itself in the aforementioned Guide.

Shared custody should not be understood as an arithmetic distribution of the time the children live with each parent, but rather as an effective exercise of responsible co-parenting. The objective is not to divide time equally but to equalize the dedication to the sons and daughters in terms of time and effort, and to create an emotional bond that allows the sons and daughters to maintain both the maternal and paternal references.

Requirements to obtain joint custody

In the absence of agreement between the parents on shared custody of the children, it will be the Judge who decides taking into account the circumstances of each specific case.

In general terms, the requirements to obtain joint custody are the following:

1. Capacity of the parents to care for the minor

Both parents must be qualified to take care of the care, assistance and well-being of the children .

Furthermore, it is important that the educational systems used by parents are similar so as not to unbalance the minor.

2. Relationship of parents with children during marriage

Another factor that influences when it comes to obtaining shared custody is the participation of the parents , before the breakup, in the education and upbringing of the children.

3. Personal relationship between parents

Shared custody implies frequent contact between the parents, so it is important that there is a good relationship for the well-being of the minor .

However, the bad relationship between the parents is not an obstacle to adopting the shared custody regime. Even joint custody can help restore good relationships between parents for the good of their children.

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According to our Supreme Court, to adopt the shared custody regime, a seamless relationship between the parents is not required, but rather a reasonable attitude and communication and mutual respect.

However, if the bad relationship and conflict between the parents affects the minors, joint custody is inadvisable.

4. Age of the children

There is no legal limit regarding the age of children to obtain joint custody.

Now, it is a relevant circumstance when agreeing on shared custody.

If the children are very young (1 to 3 years old), babies or infants will be more dependent on the mother, which is why it is usually an inconvenience. After this stage it is easier to obtain joint custody. However, some court decisions have established shared custody of young children.

An intermediate solution is the progressive custody regime . Custody is granted to the mother and progressively to the father, until shared custody is normalized from a certain age.

If they are sufficiently mature and in any case if they are over 12 years old, they may be heard by the Judge or the technical team about their preferences.

5. Number of children

Another factor to take into account is the number of children, trying not to separate siblings.

6. Stable housing for the parents

It is necessary that the homes where the children will reside in alternate periods are adequate to meet their needs.

7. Distance between the parents’ homes and the school

One of the relevant circumstances is the distance between the parents’ homes , as well as the distance to the school .

The aim is to guarantee the stability of the minor , avoiding long trips that would imply an uncomfortable situation for the child.

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To assess the distance, the number of kilometers and the time it takes to get there will be taken into account (traffic density, access roads…)

In general terms, shared custody is rejected when the home of each parent is in towns located at a long distance from the school (more than 30 kilometers).

However, joint custody is usually accepted when the distance is 15 to 30 kilometers as long as there is adequate communication (adequate access routes) between the parents’ homes and the minor’s school.

8. Social environment and roots of the minor

It is important that shared custody does not mean a break with their school and family environment for the minor .

9. Availability of work hours

Parents’ work obligations are a factor that influences the award of joint custody.

The working hours and the real possibility of adequately caring for the children are valued, to distribute the time of stay between the parents.

The existence of family support from the parents will also be assessed to cover the needs of the children in a shared custody regime.

The aforementioned requirements are general; in each specific case the Judge may assess other circumstances that may affect the well-being of the minor.

The psychosocial report: is it mandatory and binding to establish shared custody?

In judicial proceedings in which shared custody is discussed, it is common for the Judge to request a psychosocial report . The psychosocial report may also be requested by the Public Prosecutor’s Office or by any of the parents.

In short, the psychosocial report is NOT mandatory to establish the shared custody regime. Although, in most cases, they are frequently requested ex officio or at the request of a party.

The purpose of this report is to determine whether the parents have sufficient capacity and suitability to have custody of the children .

There is a false belief that the psychosocial report is binding in the judicial decision of joint custody. It is true that said report is important evidence in custody processes, it must be analyzed by the Judge, but it is NOT binding to make his decision.

The Judge will evaluate the psychosocial report along with the rest of the evidence provided or practiced in the procedure and will issue his decision on shared custody.

In short, if you want shared custody of your children, you should know that the Judge will analyze your specific case to determine if it is the most appropriate custody regime for the protection of minors.

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