Joint child custody up from 2% to three in 10 in a decade

A decade ago, only 2% of children lived exactly half their time with each parent, compared with a quarter of them as at a year ago – a figure that has since risen to nearly 29%.

According to the National Institute of Statistics (INE) in its report Annulments, separations and divorces ('Nulidades, Separaciones y Divorcios'), a total of 43% of married couples who split up in 2016 had dependent children, a similar figure to that of 2015, and in the majority of cases the mother was given custody.

But the latter cases are shrinking: in the last 12 months, parents sharing custody 50-50 went up from 13,074 to 14,594, even though the number of marriages with dependent children which broke up was about the same.

Fathers only got sole custody in 5.1% of cases in 2016, having risen little on the 5% from 2015.

The Spanish Family Solicitors' Association (AEAFA) says regional governments are tending to favour 50-50 custody above any other arrangement except where this is clearly not in the child's best interests, such as if one parent is violent or otherwise dysfunctional, and in cases where the regional courts do not award this type of childcare régime, the Supreme Court typically grants joint custody on appeal.

Socially, too, joint custody is becoming more the accepted norm, says AEAFA's spokesman José Gabriel Ortolá, since 'normally both parents work and have to fit their jobs and childcare around each other', meaning it helps to share the latter.

“Most shared custody arrangements are reached by mutual request and agreement from the start,” Ortolá reveals.

But the Association of Female Jurors, THEMIS, believes the rise in joint custody is due to a 'relaxing' in 'suitability criteria' on the part of the Supreme Court and, by definition, family courts lower down the hierarchy.

“Circumstances are getting more and more lax – it's enough for both parents to have the legal capacity and skills required to bring up a child,” says THEMIS chairwoman Amalia Fernández Doyagüe.

“Having the 'ability' or 'legal capacity' should not be enough; judges should still be taking into account who is going to be caring for the child and how, and should ask the children their opinion.

“They should also review cases regularly, for example after every six months or so – at least at first – to evaluate how alternating between homes is influencing the child's welfare.”

Uncontested divorces – of which there were 12,305 in Spain last year, according to the INE – are, unsurprisingly, where 50-50 custody is most likely to be agreed at the outset, as opposed to in contested divorces, of which 2,072 were registered in 2016; a pattern also seen with contested and uncontested separations, which numbered 61 and 516 respectively.

Fewer couples are divorcing or separating, the INE says: whilst divorces went up by 0.3%, separations went down by 6.4% last year.

In nearly two-thirds of cases, the decision to split up was a joint one, although in 22% of heterosexual marriages it was the wife who wanted to leave, and in 12%, the husband.

The average couple filing for divorce has been married around 16 years, whilst separations not ending in legal dissolution typically came after 21 years of marriage.

Mixed views on 50-50 custody

Chairwoman of the Federation of Separated and Divorced Women's Associations, Ana María Pérez del Campo, says authorities needed to be monitoring what happens after joint custody is granted, especially in contested separations and divorces.

“The statistics do not tell us anything about conflict which arises after the verdict,” Sra Pérez del Campo points out.

“More and more men are taking on the responsibility of childcare, actively choosing to, and doing so by mutual agreement; however, it's the contentious cases that concern us. Some men push for joint custody out of a kind of vendetta against their ex-wives where it was the woman who wanted the divorce, or in order to avoid having to pay child maintenance.”

Indeed, anecdotal evidence points to a minority of ex-husbands who, forced to let their ex-wives live in the marital home so the children do not have to move house and sick of paying maintenance, file for joint custody to enable them to get the money for their half of the family home and not to have to pay child support.

Cases have been reported of parents who start new relationships with a partner who already has two children and, by filing for joint custody, enables them to increase the number of dependant youngsters to three – as a result, they are then defined as a 'large family' in the eyes of the law and able to benefit from tax rebates, public funds and other assistance.

The PP-led right-wing government wants to push through a law giving priority to shared custody in all cases, including contentious divorces and separations, but the opposition socialists (PSOE) wants any legislation to prioritise the 'interests of the child' above any other consideration and for judges 'only to intervene in cases of conflict'.

“Both parents should be left to negotiate the custody régime they prefer and reach a mutual agreement,” says the PSOE, “and this does tend to happen in the majority of divorce cases.”