19 March 2018, Alberto Perez Cedillo

Too far to share custody?

The Spanish Supreme Court in its Judgement of 9 June 2017, Rec. 1495/2016, has clarified once again (and hopefully once and for all) that shared custody is considered to be the best and most beneficial care arrangements for a child, overcoming certain practical difficulties that before could have prevented the determination of shared custody, such as the distance between the parents home . In Spain, it is the preferable regime applicable, and it is for the parties to prove the reasons why for that particular case custody shall not be shared.

The case concerns a mother who made an application for divorce and child care arrangements. The court of First Instance of Valencia made an order by which both parents were to share custody of the child, on the basis of some rather odd arrangements by which the child was to remain in the family home and the parents would alternate the care of the children on a weekly basis.

The father appealed the decision to the Court of Appeal of Valencia, not in relation to the ruling of share custody but in respect to the practical arrangements that had been established by the Court of First Instance. He sought to maintain the ruling on shared custody but proposed to establish his residence in a different town but still considerably close to the family home, that way each parent would establish their residence and the children will be commuting each week.

The Court of Appeal of Valencia in its judgment of 9 March 2016 granted the father’s appeal. The decision was made on the fact that the Court considered that the distance between the parent’s respective towns and the school that the child attended to was not an obstacle to an effective shared custody. The commute was of approximately 45 minutes, which can be considered a standard distance in cities like Madrid or Barcelona.

The mother appealed the decision to the Supreme Court who dismissed the mother’s appeal and confirmed the judgement of the Court of Appeal of Valencia. Both parents acknowledge that the child attended school in a third town and that the distance between the father’s and mother’s home and the school was similar, being the burden of the commute practically the same. In previous cases the Supreme court has been reluctant to grant shared custody when the parent’s home is established in different towns. However, the position seems to have been evolved and despite the difficulties of the child having to commute from one home to the other, these are compensated by the fact that he can live with both parents. This confirms once again that shared custody has to be considered in general terms in the best interests of children.