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If there is a controversial issue in family law matters, regarding minor children, it is joint custody. In it, parents spend half the time each with the children, unlike full custody, in which one parent holds it while the other has visits, usually on alternate weekends.

This way of distributing among parents the exercise of custody of their children has been quite common for years, however, the main change with respect to today is the preference of this regime with respect to the traditional and restrictive regime of visits prevailing until the reform of the Civil Code of Catalonia in force since January 1, 2011.

In fact, prior to the reform to which we have referred, joint custody was applied according to the circumstances of each case such as the age of the children, the working or professional hours of the parents, the proximity of their home so that it did not affect the child’s school relationships, friendship or extracurricular activities, the availability of parents of a suitable residence to have their children with them, free time or vacation, the opinion of minors about it if they are sufficiently mature, or other similar.

When considering a possible regime of joint custody and custody, it was convenient to take into account, in the first place, the own capacity or aptitude of each of the parents to assume the obligations derived from the regime of joint custody and custody, which implied the overcoming of personal disagreements, tensions and hostility between the former spouses, as well as to maintain adequate communication to adopt decisions that result in the benefit and best interest of minors.

In any case, the mutual agreement of the spouses to stipulate joint custody was decisive.

At present, on the contrary, and only in cases where Law 25/2010, of July 29, of the second book of the Civil Code of Catalonia is applicable, this shared custody regime will be applied, if circumstances permit. In this regard, article 233-8.1 provides that:

“The annulment of marriage, divorce or legal separation does not alter the responsibilities that parents have towards their children in accordance with article 236-17.1. Accordingly, these responsibilities remain shared and, as far as possible, should be exercised jointly.”

The circumstances to be taken into account are set out in article 233-11 of the Law, and are:

  1. The affective bond between the children and each of the parents, as well as the relationships with the other people who live in the respective homes.
  2. The ability of parents to ensure the well-being of children and the possibility of providing them with a suitable environment, according to their age.
  3. The attitude of each parent to cooperate with the other in order to ensure maximum stability for the children, especially to adequately guarantee their relations with both parents.
  4. The time that each of the parents had devoted to the care of the children before the breakup and the tasks that he actually exercised to provide them with well-being.
  5. The opinion expressed by the children.
  6. The situation of the parents’ homes, and the schedules and activities of the children and parents.
  7. In the attribution of custody, siblings may not be separated, unless circumstances warrant it.
  8. In the interests of the children, custody cannot be attributed to the parent against whom a final judgment has been handed down for acts of family or sexist violence of which the children have been or may be direct or indirect victims. In the interests of the children, custody cannot be attributed to the parent as long as there are substantiated indications that he has committed acts of family or sexist violence of which the children have been or may be direct or indirect victims.

Thus, we see that the criteria that before the reform of the Civil Code of Catalonia were applied in practice by our courts, are currently an integral part of the Autonomous Law.

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