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Given the volume of enquiries we are receiving in response to the extraordinary and irregular situation brought about by the coronavirus outbreak and the lockdown measures decreed in response to rising infection rates, we set out below the main recommendations drawn up by the Spanish Association of Family Lawyers to address the questions and concerns being raised.
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Written by Maria Serra
Lawyer and mediator
Above all: common sense and parental agreement in the best interests of society and children. Let us avoid taking this situation to court given the lack of available resources.
For separated or divorced couples with minor children, the time-sharing arrangements (shared custody, visitation rights and stays) for their children are affected both by the public health crisis and by the State of Alarm declared under Royal Decree No. 463/2020 of 14 March.
The situation we are experiencing as a society is exceptional and affects us all. Naturally, questions arise about how to manage certain aspects of our lives that may not have been expressly addressed by the measures decreed by the State to safeguard the health and safety of citizens.
In this situation, more than ever, good judgement and the best interests and protection of children must prevail. Preserving the health of our children, of both parents, and of the wider family, particularly elderly relatives, is paramount.
Royal Decree-Law 463/2020 of 14 March provides, in Article 7, paragraph (e), that during the State of Alarm, individuals may only use public roads for the following purposes: assisting and caring for elderly persons, minors, dependants, persons with disabilities, or particularly vulnerable individuals. It is therefore clear that neither the validity nor the implementation of time-sharing arrangements
Shared custody arrangements and visitation schedules are not affected by the movement restrictions currently in force. In principle, all parties must abide by the terms set out in court orders, judgments and/or interim measures rulings governing the allocation of time with the children.
Given the large number of queries received from the public and from the legal profession itself, it is important to clarify that the issue does not lie with the children or adolescents themselves, but rather with the conflicting positions of fathers and mothers in the face of this situation, and with the fact that, more often than would be desirable, breaches of the applicable measures are likely to occur. It is therefore a matter of conscience and honesty for both parents to comply with court orders, unless there are sufficiently compelling reasons in a given case not to do so. In other words, it requires the ability to distinguish between justified non-compliance and deliberate non-compliance.
SHOULD THE TIME-SHARING ARRANGEMENTS BE MAINTAINED?
There will inevitably be cases in which maintaining the existing time-sharing arrangements in full is the most beneficial course of action for the family. However, there will also be situations where this is not the case, for example, where children or adolescents have pre-existing conditions that make them more vulnerable to illness and to COVID-19 in particular. Logic, common sense and caution all indicate that requiring them to leave their usual home represents a risk to their health.
The same principles apply where one of the parents, due to their personal circumstances, such as living with elderly or COVID-19 vulnerable individuals, sharing accommodation with third parties for economic reasons, or lacking a suitable environment to protect the children from infection, makes the transfer of children unnecessary and risky. Given the restrictions on freedom of movement, requiring children to travel from their usual place of residence to another town or city, particularly where this involves public transport such as trains, planes or ferries, poses a genuine risk to their health.
THE IMPORTANCE OF SKYPE AND VIDEO CALLS
Every family has different circumstances, and all relevant factors must be taken into account when making a decision either way. Parents who, due to the distance between their respective homes, would normally spend their contact time with the children in parks, libraries, or simply going for walks, should consider that the most appropriate course of action is to suspend in-person contact visits, whilst still enabling communication with the children through video calls, Skype, and similar tools. It is entirely possible to accompany children while they do their schoolwork, or to play with them, through these digital means. Parents must help to normalise the situation by establishing alternative arrangements and avoiding the creation of unnecessary stress for the children.
Dialogue and consensus are the most appropriate tools for navigating this situation on a temporary basis, teaching our children to approach exceptional circumstances with calm and composure, and keeping sight of the wider interest, which means protecting them from harmful actions such as escalating conflict between their parents, itself brought about by a situation of force majeure.
REACHING CONSENSUS ON FINANCIAL COSTS
Further issues arising from this situation affect parents' financial circumstances. The suspension of in-school teaching has an economic impact: the additional cost of having children at home during the other parent's scheduled time, and the expense of arranging third-party childcare where parents cannot work remotely due to the nature of their professions (healthcare workers, national and regional security forces, local police, supermarket staff, call centre operators, etc.). All of these matters must necessarily be addressed through consensus and dialogue.
Given the suspension of all court proceedings except those of extreme urgency, should it prove impossible to reach the desirable agreements, parties may seek the adoption of child protection measures or orders provided for under Article 158 of the Spanish Civil Code (Additional Provision Two, paragraphs 2 and 3(d), of Royal Decree 463/2020 of 14 March) as well as protection orders and any precautionary measures relating to violence against women and minors. Article 158 of the Civil Code allows for the adoption of such measures and orders as may be considered appropriate to remove a minor from danger or to prevent harm within the family environment or from third parties, since pursuing enforcement proceedings to
compel compliance with existing judgments will not be effective, as such proceedings will only be resolved once the suspension of judicial activity is lifted.
AEAFA'S RECOMMENDATIONS
The Spanish Association of Family Lawyers (AEAFA, Asociación Española de Abogados de Familia) takes the view that:
1. Existing court orders must be complied with by both parties.
2. Where strict compliance with a current order is impossible given the exceptional circumstances, and where a risk to the children or adolescents involved can be identified, parents may agree any temporary changes without the need for judicial approval, although it is advisable to record any such agreement in writing.
3. Should either parent consider that the existing arrangements pose a risk to their children, they must bring this to the attention of the court under Article 158 of the Spanish Civil Code, requesting measures to protect the child from danger or to prevent harm within their family environment.
In conclusion, we hope to be able to guide and steer all disagreements between parents towards dialogue and consensus, and to avoid escalating matters of this nature to the courts.
