When a married couple decides to break off the relationship and there are minors involved, the situation is delicate, since the custody of the descendant or descendants needs to be ruled by a judge. Within the different types of custody, there is the so-called shared custody, where both parents share the same days of coexistence with the minors, as regulated in article 92 of the Spanish Civil Code. Therefore, if a legal separation process is initiated, it is necessary to have a clear idea of what this term is.
The first point to keep in mind is that the parental authority of the guard and the custody of minors are different concepts. The first, with few exceptions, will be maintained by both parents, since it consists of the general representation and administration of the assets of the minors. Thus, except for exceptions of deprivation, it will belong to both. The other point, that of guardianship and custody, no. The latter focuses on the coexistence of minors. That is, establish who they will live with and how long they will live.
Although the use of single-parent custody continues to be the majority, already in 2020 more than 41% of the custody granted was shared. In the latter, in custody cases, both parents share the same rights. This means that both parents will spend the same days with their children per month and will have the same rights and duties.
In a divorce process with children involved, their custody, if they are minors, is the most delicate point of the entire process. Therefore, if the relationship has ended in a non-conflictive way and there is an agreement between both parents, the fastest way to obtain joint custody is through an agreement between the parties. If the couple establishes a regulatory agreement in which both are in favor of having joint custody, then the process will be much simpler.
Even so, even if both agree, the judge will be the one with the last word. In order to issue a resolution, a report from the Public Prosecutor must be analyzed, the opinion of the minors, the allegations that the parents can make and the evidence they present, the relationship that both parents maintain with their descendants and the report issued by the specialists. qualified. This process will be carried out regardless of whether there is an agreement between both parties.
On the other hand, shared custody can also be established whenever one of the two requests and the judge deems it appropriate. In this case, the requesting party must have a favorable report from the Prosecutor, who will represent the interest of the minor during the process.
Thus, to obtain shared custody in a divorce or separation process, it can be done by mutual agreement, but overcoming all the procedures mentioned above, or whenever one of the parties requests it with a favorable report from the Prosecutor's Office.
After concluding the judicial process, and with the passage of time, joint custody can be requested again. Regardless of the time elapsed after the divorce decree, the interested party or both parties may initiate a new judicial process to modify the measures established in that previous divorce.
To do this, both parties must either present a new regulatory agreement in which both parties agree or, in the event that only one party requests it, they will have to initiate a new procedure with the previous reports and obtain favorable testimony from the Prosecutor's Office to achieve this new coexistence regime for minors.
Finally, the type of domicile in which the minors reside will also be established: revolving or fixed. In addition to the periods of permanence. In the first case, the judge may establish a fixed domicile for the minors, where the parents will be the ones who will rotate their home, or a revolving domicile, in which the minors will be the ones who change homes. In addition, the alimony will also be established in this same judicial procedure.
