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Joint child custody post-divorce up from 2% to 25%, but remains a postcode lottery
thinkSPAIN , Friday, February 17, 2017

SHARED custody of children has gone up from just 2% to 25% of families in a decade, according to latest figures – one in four divorced couples with one or more kids in common have set up an almost 50-50 régime of upbringing and residence.

Brought into play in 2005 through an amendment to the Spanish Civil Code, joint custody means the child effectively lives with both parents, alternating residence between them, although not necessarily strictly half their lives with each.

The aim was to prevent the agony suffered by one parent – usually, statistically, the father – of missing out on his child's life by becoming a 'weekend dad', or even going months or years without seeing the children at all.

In many cases, until then, a father could find himself paying the mortgage on the family home for the mother and children to live there, on top of his own mortgage or rent, plus a childcare allowance, and yet rarely spending any time with his sons or daughters at all.

But joint custody has proven to be a double-edged sword in a high number of cases: fathers who are not really interested in bringing up their children applying for shared custody to avoid paying childcare maintenance, or even – if he remarries and has stepchildren – to increase his immediate family unit to three kids or more to qualify as a 'large family', with the consequent benefits and tax breaks this brings.

It has even led to women who have left violent husbands being forced to let their children spend time with these men, and unable to detach themselves from their abusers, but numerous campaigns are currently running to call for anyone charged with domestic violence, male or female, to be barred from unsupervised access to his or her children.


Four in 10 families in Catalunya; fewer than one in 13 in Extremadura

Although shared custody has rocketed since 2005, after the first five years a huge difference has been seen by region, according to figures from the National Institute of Statistics (INE).

This was because some of Spain's 17 autonomously-governed regions introduced their own laws on child custody – for instance, parents in the land-locked western region of Extremadura are five times less likely to be able to access a joint care agreement than those in the north-eastern region of Catalunya.

In fact, four in 10 families in the latter have agreed on shared childcare thanks to a regional law allowing for it except in exceptional circumstances or where the parents jointly decide otherwise, and whilst the Balearic Islands has no legislation to that effect, its legal system is based upon a default asset split in the event of separation or divorce, leading to 38% of families having set up joint custody.

In Valencia, 36% of parents have a shared custody agreement; in Aragón, 34%; in Navarra, 27% and in the Basque Country – the last of these regions to introduce its own custody legislation – 26%.

These federal regions created laws because they already had a high level of joint care pacts between divorced and separated parents, according to demographics expert Montse Solsona at Barcelona Autonomous University, and also because the socio-cultural circumstances in these areas, which are generally more highly-populated – with the exception of Aragón – mean joint childcare arrangements tend to occur automatically.

At the other end of the scale, only 8% of children in Extremadura live jointly with both parents and Murcia presents the second-lowest shared custody figure in the country, at 14%.

Also below the 25% average are Andalucía and Galicia, where only 16% of children live almost equally with both parents; Madrid, the Canary Islands and Castilla y León where the figure is just 17%; Castilla-La Mancha, at 18%; Asturias, at 20%; Cantabria, at 21% and La Rioja at 23%.

Urban equality vs rural 'housewife culture'

In all regions in Spain, the Civil Code dictates that shared custody can be granted if both parents agree and the judge considers it beneficial or, if the parents cannot reach a consensus, if the judge rules that joint childcare arrangements would be in the child's best interests.

Montse Solsona says traditional gender roles and lack of equality have a major influence in regions with the lowest incidence of shared custody, as well as local legislation.

Those with the least likelihood of shared care are areas with more of a 'housewife culture', Solsona explains: divorced parents where the bulk of the child-rearing is carried out by the mother, and the father tends to be the breadwinner, with far fewer women in the workplace.

But the fact Madrid appears to be in the wrong category – a densely-populated, cosmopolitan region among Spain's more modern-thinking areas, in keeping with Valencia, the Basque Country, Balearic Islands and Catalunya, yet has very low shared custody levels more in line with rural, traditional and less-dynamic regions – means 'something does not add up', Solsona says, and more research is needed into why this is the case.

When both parents work, joint custody is more likely to be awarded and is easier to arrange, explains Solsona, but at present, there is no national law giving it priority.

Society and politicians divided over what's best for the children

The current reigning right-wing PP government intended to approve a law giving preference to joint childcare, but fell foul of associations of divorced parents who wanted it to be made the legal norm with custody disputes in court limited purely to cases where one parent wanted sole residence rights, for example in the case of domestic violence.

No other political parties have been able to agree – centre-right Ciudadanos is keen to revisit the matter, but has not yet managed to persuade the PP and has the whole of the opposition against it.

The socialists, or PSOE, want the law to stipulate shared custody only where both the mother and father agree to it.

Left-wing Podemos says joint custody is what should 'ideally be aspired to', but that in reality, it is a situation only accessible to those couples who shared child-rearing more or less equally prior to the divorce and considers that to make joint care obligatory could, in many cases, be harmful to the child.

The jury is out even in wider society: the association Todos Iguales ('Everyone Equal') says the 'better of two bad situations' would 'always' be joint custody if the parents were unable to agree on a régime, and is firmly on the side of fathers who are pushed out of their children's lives after a divorce.

Its chairman, Fernando Chapado, who is seeking half a million signatures on a petition to enable him to present a People's Legislative Initiative (ILP) points out that if a man was a good father prior to a divorce, he is still a good father afterwards.

Meanwhile, Custodia en Positivo agrees with shared child-rearing by mutual parental agreement, but is completely against it being forced upon families through the courts.

If the parents had been jointly involving in their children's upbringing prior to the divorce, then the court should be able to enforce shared care, because 'if the parents' relationship is poor and they cannot agree, it's the children who suffer', says chairman and lawyer Juan Ramón Perís Santiago.

Other legal experts in family disputes hold different views altogether – magistrate Teresa Picantó says agreement between parents is key, but that there should be no 'one-size-fits-all formula'.

“Each case should be studied on its individual merits, and a balance in negotiations found where the child's best interests are always guaranteed,” Sra Picantó insists.



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