Pascual Ortuño, a retired family judge, remembers very well the first divorce he had to settle in which the woman requested to share custody of her children with her ex-partner, instead of having them almost all the time. “It must have been the year 92 or 93. They were two municipal police officers, with the same rank and the same work schedule. He had a new partner and her mother argued that since they had an identical job, she didn't have to take care of her children all the time. So, it was considered a very sui generis request, and it was granted.”
A lot has changed since then. A decade ago, in April 2013, the Supreme Court issued a ruling that established jurisprudence in which it recommended shared custody, not as an “exceptional measure” but as something “normal and even desirable, because it allows the right to be effective.” that children have to relate to both parents.” In Catalonia and other communities with special rights, such as Navarra and the Basque Country, it has already been recommended.
Ten years later, 45.5% of couples with children who separate, both homosexual and heterosexual, obtain joint custody, compared to 3.5% in which a father remains the main caregiver and 50.6% in What a mother does.
“You might think that, after the legislation, there would be a turnaround, that the statistics would radically change, but that has not been the case, it is being a very important but very gradual social change,” says Rafael Alcázar, a sociologist and social worker who has written a thesis and numerous academic articles on the subject. In 2007, only 9.7% of couples agreed on shared custody, and in 2016 it was still 28.3%.
“The thing is that this divorce culture did not begin to exist in Spain until this century, long after it developed in other countries,” says Ortuño. The magistrate liked to include in the sentences a phrase that he read in a document from the French court of cassation: shared custody is not a legal question, it is a state of mind. To reach that “state of mind” in a moment, a divorce, in which it is very likely that there will be tension, resentment and resentment, and that economic issues will come into play, it is necessary to do an exercise in mutual understanding and generosity that does not It's always easy.
Contrary to popular belief, sharing childcare 50/50 does not eliminate the possibility of one of the spouses, the one who earns more money, passing on child support or even compensatory support to the other. to the ex, if one of the two sacrificed their career for care. Judge Mercè Caso likes to explain it by talking about ham. “The child does not have to eat York ham in one house and Iberian ham in the other. The normal thing is that the one who earns the most pays more so that the other can buy serrano. The child has the right to have two similar environments and if there is, for example, a mother who earns much less, it is not good for her life to be economically very restricted in one of the environments. He who has more important income, his obligation is higher.”
Caso admits that “popularly” it is often believed that shared custody implies that no one pays anything to the other, beyond the common expenses of the children, and that this sometimes acts as a “dysfunctional motivation.” That is to say, there are parents, almost always men, who ask for shared custody for an economic reason, without having previously exercised co-parenting when they lived as a couple.
Marta Calderó is a family mediator based in Lleida who usually deals with many of these cases. “I advise many women who are experiencing conflict due to imposed shared custody. Sometimes, the courts tend to give it by default, without taking into account what has happened before, that the burden of parenting has fallen on the woman and that has precisely been the cause of the breakup. Many times there is a very poor bond between the father and the children and there is neglect or delegation to other figures, often the paternal grandmother. Then there are more serious cases, in which there has been psychological violence, which is difficult to prove and vicarious violence ends up developing, through the children, to continue harming the woman."
Judge Caso recognizes that these cases can occur, such as shared custody in a house in which the two parents have not exercised their responsibilities equally, but she wonders if it is always necessary to look back when making this deliberation. “It is a powerful argument to say that what the judge has to do is look at how this family had functioned until now, that the judge must maintain and not invent, but it cannot be the only thing, because with a family breakup a new situation begins. and it is necessary to assess what will be most convenient. If we are in a classic model in which the father has been a provider father, who came home at nine at night, thinking that he will make a change is difficult, but there are jobs in which it is possible.
Hence, Caso points out, the importance of the document that has been required in the Catalan courts for some time now, a parenting plan in which the parents explain how they are going to organize themselves. “I remember that we had a pilot for transoceanic lines who asked for shared lines. We asked him: and how are you going to organize yourself? And he said: we'll see. He had not fulfilled that wish. If you know that you are not going to leave work at four or six, you have to have a plan that involves the help of third parties, family members, babysitters...
The case of Marisa M. (not her real name) fits perfectly with the hypotheses drawn up by Calderó and Caso. She separated from her five years ago, with two children who were then three and five years old, and the court imposed shared custody on her that she did not want. “The children's father was never at home, they saw him half an hour a day on weekdays. He didn't take them to school and saw them already at nine at night having dinner and in their pajamas. To this day, five years later, he still left the children crying. One of them tried to escape from school one day when it was an exchange, the other had some violent outbursts.”
She has been able to use what was the family apartment, which he owns, for three years, but she has had to abandon it. Since his ex, who lives with a new partner, “triples” his salary, he gives him alimony for the children, but, as he says, they have constant tensions not only because of money (for paying for extracurricular activities and treatments doctors, for example), but because they practice opposite educational styles. “A psychologist told us that I am overprotective and he is authoritarian.”
“Before separating I was extremely in favor of shared custody,” he says, “and now too, but only if co-responsibility already existed before. If one of the two suffers from everything, the principle that the child has the minimum possible changes is not being respected. “My children have seen their lives completely altered.”
“There are many shared custody cases that are poorly granted, which later turn out to be a disaster and have to be reversed,” admits Pascual Ortuño. “From my perspective as a retired judge, what I see is that we are the only country in Europe and Latin America that does not have specialized family judges. In the profession there is contempt for these issues, they are the lifeblood of the judicial career. In Portugal, a judge must have ten years of experience to be able to deal with these issues, and that gives you not only professional experience, but also vital experience. Here I see judges who have just gotten their position, and perhaps have not even had a stable partner, settling divorces.” He was the first to import to Spain, from Canada, the figure of the parenting coordinator, a professional, who can be a lawyer, psychologist or social mediator who intervenes in cases of great conflict "to mend what is broken." Another thing he saw in Canada and would like to transfer are the “parenting schools” that exist in the family courts themselves.
Faced with these problematic cases, there are many other ex-couples who have managed to make their family work after a separation, and maintain an enviable harmony. The writer and psychologist Letícia Asenjo, whose latest novel is precisely titled Divorci i adventure (La Segona Perifèria) recently said in a report in La Vanguardia that “shared custody is the best invention of feminism.” She and her ex-husband – he is also a psychologist – separated 12 years ago, when her children were two and five years old. Since they were not married, they made a homemade plan, without lawyers or mediators. “As the children were very young, they spent each night in a different house and school was the center of our lives. The priority was not to spend a long time without seeing each other and that the children did not go from one place to another with the suitcase, we made an effort to ensure that they had everything in both houses.
Later, for work reasons, they moved to a system of rotating full weeks and now, by decision of their children, now teenagers, they spend two days at each house, with alternate weekends. At first, they shared a holiday house in Menorca (one week with each parent) and even now they celebrate Christmas all together, with all the grandparents, including the parents of her ex-husband's new partner. “We are a bit Modern Family,” she admits. “The failure of many couples is not being able to organize themselves that well when they are together. We couldn't either. “It wasn’t the reason for the breakup, but it didn’t help.”
In fact, it is a frequent comment, especially among mothers in heterosexual couples, to idealize divorce with shared custody as the perfect form of parenting. There are dozens of videos on Tik Tok with that script, from the tired mom subgenre (“when you can't leave your children with your ex because you're still happily married to him”) and the writer Minna Dubin, author of the book Mom Rage (Seal Press), A book that has just been published in the United States about the “daily crisis of modern motherhood,” also dedicates a chapter to what she recognizes is her fantasy: “I love the idea of raising and being married every two weeks (…) During Paul's week with the kids, I would have a break. Not a go-to-the-supermarket break, no, a send-whatsapps-in-the-toilet break. Not even a respite from the gym-and-brunch, but a relief for seven days, without having to make decisions, or prepare meals taking into account each person's preference.”
Many separated men involved in raising their children have also been able to have a presence in the children's lives that would not have been possible a few decades ago. Borja Estévez, an accountant by profession, has become an influencer of co-parenting without much searching. He shares custody of his two children with his ex-partner in a very friendly way, and often talks about it, and shows his life with the children, ages seven and five, on his Instagram accounts. him and Tik Tok. “We were always clear that we did not want to be separated from our children, who were 2 and 4 years old at the time. At first, we kept the nest house, with the children there, and we took turns, but on an emotional level it is a blow. It involves returning to the crime scene every week. Now we do weekly shifts, but Tuesdays and Thursdays are spent with the other parent. In the end, I see the children almost every day,” he says.
Estévez assures that in his group of friends there are almost half a dozen divorces and the only one who co-raises his children 50% of the time is him. “There is still a social imbalance and people are still not used to it. Sometimes the fact that I take care of my own children is also very celebrated, as if I were doing something out of the ordinary.” When he posts photos of himself on the networks, such as those from the four's recent family trip to Port Aventura, he usually receives comments from people with less idyllic separations: "Who could?"
