Pascual Ortuño, a retired family judge, remembers 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 1992 or 1993. They were two municipal police officers. He had a new partner and the mother argued that since they had the same job, she didn't have to take care of the children all by herself all the time. Then, it was considered a very sui generis request, and it was granted."
Life has changed a lot since then. A decade ago now, in April 2023, the Supreme Court issued a judgment that established jurisprudence in which it recommended shared custody, not as an "exceptional measure" but as something "normal and even desirable, because it allows that the right of the children to relate to both parents is effective". In Catalonia and in other communities with special rights, such as Navarre and the Basque Country, it was already recommended.
Ten years later, 45.5% of couples with children who separate obtain joint custody, compared to 3.5% in which a father remains as the main carer and 50.6% in which a mother does so. In 2007, only 9.7% of couples agreed on shared custody, and in 2016 it was still 28.3%.
Contrary to popular belief, sharing 50% of childcare does not eliminate the possibility that one of the spouses, the one who earns more money, will pass on alimony for the children or even a compensatory pension to the ex-partner, if one of the two sacrificed his career for care. Magistrate Mercè Caso likes to explain it by talking about ham. "The child does not have to eat sweet ham in one house and Iberian ham in the other. The normal thing is that whoever earns more, pays more so that the other can buy salted ham". Caso admits that many believe that shared custody means that no one pays anything to the other and that this sometimes acts as a "dysfunctional motivator." In other words, there are parents, almost always men, who ask for shared custody due to an economic issue, without having previously exercised co-parenting when they lived as a couple.
Marta Calderó is a family mediator based in Lleida who often deals with many of these cases. "I advise many women who live in a conflict situation due to an imposed shared custody. Many times there is a very poor bond between father and children and there is neglect or delegation in 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 being developed, through the children, to continue harming the woman”.
Magistrate Caso wonders if it is always necessary to look back when making this deliberation. "It is a powerful argument, to say that what the judge must do is to look at how this family had worked until now, that the judge must maintain and not invent, but it cannot be the only argument, because with a family breakdown it begins a new situation". From here he points out the importance of the document that has been required in Catalan courts for some time: a parenting plan in which the parents explain how they will organize themselves.
The case of Marisa M. (not her real name) fits perfectly with the hypotheses outlined by Calderó and Caso. They separated five years ago, with two children who were then three and five, and the court imposed joint custody that she did not want. "The children's father was never at home, they saw him for half an hour a day during the week. I didn't take them to school and I saw them at nine o'clock at night with dinner and in their pyjamas. Today, five years later, I still leave the children crying. One of them tried to escape from school on a transfer day, the other has some violent outbursts.
Since her ex, who lives with a new partner, "triples" her salary, she pays him alimony for the children but, according to her, they have constant tensions not only about money (for the payment of extracurriculars and treatments medical, for example), but because they have opposite educational styles. "Before I separated I was very much in favor of shared custody - he says - and now too, but only if co-responsibility already existed before. If one of the two has gone through everything, the principle that the child has the minimum possible changes is not being respected. My children have seen their lives completely altered."
Faced with these problematic cases, there are many other broken couples who have managed to make their family work after a separation and maintain an enviable harmony. The writer and psychologist Letícia Asenjo, whose last novel is precisely titled Divorci i aventura (The Second Periphery), 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 already 12 years ago, when their children were two and five. Since they were not married, they drew up a homemade plan, without lawyers or mediators.
"Since the children were very young, they spent every night in a different house and school was the center of our lives." Later, for work reasons, they switched to a system of rotating full weeks and now, at the decision of the children, now teenagers, they spend two days in each house, with alternating weekends. At first, they even shared a holiday home in Menorca (a week with each parent) and now they celebrate Christmas together, with all the grandparents, including the parents of her ex-husband's new partner. "We are a bit of a Modern family", he admits.
Borja Estévez, accountant by profession, has become, without looking for it much, an influencer of co-parenting. He very amicably shares custody of his two children with his ex-partner, and often talks about and shows his life with the children, aged seven and five, on his Instagram accounts (@_bestevez_) and TikTok ( @bestevezap). "We were always clear that we did not want to be separated from our children, who were then 2 and 4 years old. At first, we kept the nest house, with the kids there, and we took turns, but emotionally it's a pain in the ass. It involves returning every week to the scene of the crime. 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 says that in his group of friends there are almost half a dozen divorcees and he is the only one who takes care of his children 50% of the time. When he uploads photos on his networks like the ones from the recent family trip of the four of them to Port Aventura, he receives comments from people with less idyllic separations: "Who could".
