This past Sunday, a man allegedly murdered his daughters, aged 2 and 4, in a district of Alboloduy (Almería), and later committed suicide. The Civil Guard handles vicarious violence as its main hypothesis, since the alleged murderer had a history of sexist violence against her ex-partner and a restraining order against her.
At the time of the events, the man had open criminal proceedings for gender violence against the mother of his daughters. Even so, he enjoyed a visitation regime since 2023. How is that possible according to the legislation?
In 2021, the law regulating the visitation regime of minors who live with victims of domestic and gender violence was modified. With the aim of protecting minors from vicarious violence, the suspension of these visits to an alleged abusive parent was established as a general rule. This was supported by the modifications of article 94 of the Civil Code and 544 ter of the Criminal Procedure Law.
However, it is not an automatic suspension, since both texts leave room for maneuver to the judge to decide in each case. Article 94 of the Civil Code says that "the establishment of a visit or stay regime will not proceed, and if it exists it will be suspended, with respect to the parent who is involved in a criminal process initiated for attacking life, physical integrity, freedom , the moral integrity or the sexual freedom and indemnity of the other spouse or their children", nor when there are "founded indications of gender violence".
That is why the man, not yet convicted, had access to a visitation regime, given that the civil procedure progressed much faster than the criminal procedure. As reported by judges consulted by EFE as a result of the case, "measures were agreed upon in which the father's visits to his daughters have been maintained. If a criminal conviction had already occurred, no matter what happened, they would have been suspended (the visits), because this is stated in article 48.2 of the Penal Code".
Now, it adds that the judicial authority may establish a visitation regime "in a resolution motivated by the best interests of the minor." What it expressly prohibits is establishing visits when the parent is in prison for this violence, whether provisional or after a final sentence.
The Constitutional Court endorsed this article specifying that "it lacks automatism and does not legally predetermine the deprivation of visitation or stay regime to any of the parents", that is, that a judge can decide on these visitation regimes, always motivated by attention to the interest of the minor.
For its part, article 544 ter of the Criminal Procedure Law was modified so that the visitation regime is suspended when a protection order for gender violence is issued and there are "founded indications that the minor sons and daughters had witnessed, suffered or lived with" that abuse.
This article also specifies that, at the request of a party, the judicial authority may not agree to this suspension through a resolution motivated by the best interests of the minor and after evaluating the situation of the parent-child relationship.
According to the interpretation of the State Attorney General's Office, this article of the Lecrim ends the possibility of establishing a visitation regime in a protection order procedure for the mother for being a victim of sexist violence, it only allows suspending the pre-existing one or agreeing motivated maintenance.
The magistrate and coordinator of the Gender Violence Commission of Judges for Democracy, María del Prado Escoda, explains to EFE that the legal texts leave in the hands of the judge the power to stop applying the general rule based on the circumstances of each case and this, he indicates, leads to very different forms of resolution by the different judicial bodies.
For her part, the judge of the Court of Violence against Women number 1 of Getafe (Madrid), Cira García, defends that to apply the exception of allowing visitation to an abuser, the boys and girls must be assessed, listening to them. and collecting a psychosocial report from the minors. Until there is such a report (which usually takes between 8 months and a year), she is in favor of keeping visits suspended.
If it is established without these steps, he highlights, a "blind" visitation regime would be established, "which is very delicate."
According to the Domestic and Gender Violence Observatory of the General Council of the Judiciary, in 2023, 6,850 judicial resolutions were issued to suspend guard and custody and the visitation regime in cases of sexist abuse, as a result of the legal reforms that came into force. effective in 2021
