“Sustaining a relationship because you think it is best for the children is a huge mistake”

Divorces are not only a legal tool to dissolve a marital union; When there are children involved, they also imply a profound reconfiguration of the family nucleus.

Oliver Thansan
Oliver Thansan
15 May 2024 Wednesday 10:24
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“Sustaining a relationship because you think it is best for the children is a huge mistake”

Divorces are not only a legal tool to dissolve a marital union; When there are children involved, they also imply a profound reconfiguration of the family nucleus. This reorganization has a significant impact on minors, who face changes in their environment and in the dynamics of relationships with both parents. However, the process “does not have to become something that exhausts them emotionally,” lawyer Susanna Antequera, a specialist in family and criminal family law, explains to La Vanguardia. “Sometimes, a family breakup is considered as if it were a real drama when in reality it is the solution to the problems,” she clarifies.

Founder of the Antequera de Jáuregui law firm and one of the most important legal disseminators on social networks, where she has published more than 600 rulings, Susana Antequera believes that making the decision to separate, although difficult, can free everyone from a toxic and offer a more stable and healthy life for children. “Problems at home arise from supporting a relationship that is not appropriate and those who first detect it are the minors,” says the matrimonial lawyer, who takes stock of the situation of legal separations in Spain.

Is it inevitable that children will suffer during divorce?

If parents have the good will to manage it correctly, it does not have to become something that exhausts them emotionally. We must try to reach an agreement, always thinking about the children before everything. Let them forget about selfishness or economic interests. There are tools and mechanisms to reach an agreement. They have many years ahead of them to continue exercising their role as parents. Lawyers and judges appear once, they will not always be there to solve the problems they may have regarding their children.

What happens when parents can't agree?

If the positions are very distant and an agreement is not reached, I always try to activate the family mediation service. If I detect that there is an emotional or psychological difficulty, I always refer them to seek psychological support. In family law, a cocktail of feelings of frustration, revenge, jealousy or anger sometimes forms that can explode in a counterproductive way. When the family mediation service does not work either, then in the end a judge will have to intervene and end up in a trial which is obviously the last resort, at least in my opinion.

How long can the process last?

It depends on the will of the parties as well. There is no minimum or maximum. Sometimes mediations work in two sessions and other times ten are needed because there are many things to discuss and distribute. Not all divorces are the same. There are couples who have a lot of assets and cannot agree. Depending on personal economic circumstances, it can be a very agile and effective mediation or a very complicated one that in the end is not possible and we have to end up in a trial.

Is the divorce process more delicate when there are young children involved or when it involves teenagers?

It is more sensitive when they are small children, although all ages have their advantages and disadvantages. Suffering exists even for a baby, because babies detect that something is happening at home and can perceive the nervous state of the mother or father. This wear and tear can be suffered by anyone from a baby to a teenager. Sometimes little ones suffer in one way while teenagers suffer in another. Said by psychologists and psychiatrists, adolescents end up channeling all their frustration, disappointment or pain into various channels. There are more and more teenagers who are diagnosed with mental health illnesses, depression or rebellion and sometimes, behind all that, there is a poorly managed breakup. When they are very little, this type of anxiety or feeling of abandonment is also detected, because perhaps mom wants her to be with them more and dad doesn't allow it.

Is the opinion of the children taken into consideration when determining custody?

Here in Spain, unlike other countries, the minimum age for a minor to have the right to be heard in a judicial procedure, such as a divorce, is 12 years of age or older. Personally, I totally disagree with using a minor so that a judge can easily determine the best custody model. There are many fundamental aspects that a jurist can overlook. How can a judge detect if a minor is being manipulated by one of her parents without being a psychologist? It is easy to conduct an interview with a minor, which usually lasts a maximum of 20 minutes so as not to stress them, and ask them: 'Who would you like to stay with?' If that minor has suffered insistence from his parents, inevitably, he will find himself in a situation known as a loyalty conflict.

What is loyalty conflict?

It means that the child is at an emotional crossroads in which he feels that, by expressing his desire to stay with mom, he is disappointing dad, or vice versa. In a conventional divorce in which custody is being questioned, I am not in favor of exploring the minor. There are other tools to demonstrate the parenting capabilities of the father and mother.

What other tools could be used to determine custody?

Through the psychosocial office, psychologists who are experts in the field explore the situation in an environment that is not the court. Psychologists know perfectly well how to address minors of all ages so that they do not feel so judicialized. This is a tool that can be quite effective, but it happens that we are currently suffering from a lack of resources because justice is one of the sectors of our country to which not much investment is dedicated. In general, there is a lack of personnel and, in the family jurisdiction, we need judges and psychologists who are experts in the matter so that they can study the case as it really deserves. The tool is good, but there is a lack of personnel. So, there are waiting lists, the interviews and examinations are not of the quality that minors deserve, and the psychological reports suffer from errors, among other problems. We have justice in family law that lacks guarantees for minors.

Nowadays, is there a greater preference for shared custody, or does the tendency for mothers to assume exclusive care of the children still persist in some cases?

From a judicial perspective, joint custody is fortunately now the norm and not the exception. It is considered to be the best for minors. This is how they detect that both dad and mom are equally active and participatory in their development. There are also cases in which mothers tend to opt for exclusive custody. Because? Well, because that bond, that umbilical cord rather, has not yet been cut and we make the mistake of believing that we are the best to care for and raise our children. But that is also implying an enormous sacrifice in our personal and professional growth. Luckily this trend is becoming less and less and more mothers are proposing shared custody.

What is your opinion about trying to sustain a relationship that does not work over time 'for the well-being of the children'? Could this lead to a more contentious divorce in the future?

Maintaining a relationship that does not work thinking that it is the best for the children is a huge mistake. That is acting in a non-diligent manner. Precisely, problems at home arise from sustaining a relationship that is not appropriate and those who first detect it are the minors. Sometimes a family breakup is presented as if it were a real drama when in reality it is the solution to the problems. Minors in a period of adaptation will understand what it means to live at dad's house and mom's house. If a marriage or couple wants to try to recover their relationship, I advise them, first of all, to undergo family therapy. If, despite therapy, they can't get over that bump, breakups are the order of the day and absolutely nothing happens. It's a family reorganization, not a melodramatic issue. It is the solution to many problems.

Is it possible to request a modification of custody after it has been established?

Whenever a change in circumstances arises that affects the minor, it is possible to modify custody. This can be done by mutual agreement between the parties involved, or in case of disagreement, a judge must intervene. The party interested in modifying custody must demonstrate the circumstances that have caused this change and how the proposed modification will benefit the minor.