Understanding Shared Custody: Types, Assessment Criteria, and Legal Process
Shared custody is the custody regime by which both parents alternate the care of the children. The goal is to equate responsibilities and company for alternating periods of time. Both parents have the same conditions in making decisions about the minors.
Although it is one of the modalities that is considered beneficial in courts, it is common for one of the parents to disagree . If the mother does not agree to joint custody, she must meet a series of requirements to go to court.
However, joint custody may be established even if the mother does not want to, as long as certain elements are met and the child is not harmed.
Types of joint custody
Depending on the place of stay and the period of time in which cohabitation alternates, there are various types of shared custody :
- Fixed domicile : the habitual residence is the one in which the children maintain their domicile. The minors do not make any changes, but it is the parents who alternate their periodic stay in the house.
- With rotating domicile: each parent has their own home and the minors rotate between one and the other within the established periods.
- For equal period of stay: the time that children share with their parents is equitable. The most common thing is that you stipulate in weeks or months with each of them.
- Shared custody for different periods of stay : one of the parents shares more time than the other with the minors.
Elements that are assessed to attribute shared custody
The elements and circumstances that arise from jurisprudence do not constitute a general rule. Each judge will apply his or her criteria to evaluate these and other factors that influence each particular case.
The objective is the protection of the interest of the minor , which is paramount in these procedures.
- Bond between the parents and their children : the relationship that exists between the parties and, especially, between the parents and the minors, is one of the key elements. Some of the points analyzed are the similarity in educational models and coordination in the exercise of parental authority .
- The age of the children . A case of shared custody with nursing minors ( up to two years ) is not the same as with adolescents. The needs and interests of minors are different and justice ensures them.
- Number of children.
- Family support: having close family members who can support either parent in caring for the children is a positive factor. It is understood that, in the event of any unforeseen event or incompatibility with work responsibilities, the minor will have an element of support.
- The proximity of domicile between the parents : this point is important considering the routine activities of the minors. Joint custody should not create problematic situations, such as long trips to attend school.
- Work and family balance: although you can rely on the help of family members, each parent is truly responsible for the care of their children. Therefore, she must demonstrate that she can reconcile her schedule and dedicate enough time.
How to request joint custody?
The first step is to file a lawsuit in the competent court. This begins the procedure for shared custody or modification of measures , as the case may be.
On many occasions, the father initiates this request, after having another model already agreed upon in the regulatory agreement.
- Request: it is a requirement that at least one of the parents make the request for shared custody. It can be presented in the contentious procedure or provisional measures .
- Report from the Public Prosecutor’s Office .
- That there is no prior conviction of gender violence or domestic violence.
- The wish of the minor to whom shared custody would be applied, as long as he or she is of age to give his or her opinion .
- Report of the psychological expert requested ex officio or by one of the parties.
The evidence that allows this request to be accredited is essential for the judge to analyze before sentencing . Some of the main ones are:
- Exploration of the minor : interview of the minor with the judge and the prosecutor where their preferences, the relationship they maintain with their parents, their routines and their motivations are heard. It is a mandatory measure for children under 12 years of age or older.
- Psychosocial Report : specialized psychologists and social workers prepare a report on the minor and the family group. The circumstances and interactions between the parts of the family nucleus are analyzed and the best options are recommended.
- Attach proof of compliance with the requirements to request shared custody .
- The judge evaluates all the circumstances of the case to determine whether or not shared custody.
Alimony in shared custody
A mistaken belief is that alimony automatically ends with joint custody. Again, each case must be evaluated individually.
More information about the possibility of establishing alimony for children in shared custody in this other post .
Advantages of joint custody
Justice understands that it is the modality that is closest to the lifestyle that minors led before the breakup of their parents’ relationship. With this custody, the equal obligations and rights of both parents are guaranteed, while the children enjoy their bond.
Even though the mother refuses, it is possible to access shared custody. Since there is no mutual agreement, it will be necessary to file a lawsuit and initiate the contentious procedure. As long as the legal requirements are met and reliably proven, there will be no reason to deny joint custody .
To request shared custody it is necessary to have the advice of a specialized lawyer. A qualified Family Law professional will help you gather the evidence that judges consider to grant shared custody.