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Child custody arrangements are undoubtedly one of the central issues that must be agreed upon in a divorce involving children or in cases of legal separation with minors.
What happens to the children in a divorce without an agreement?
If no agreement is reached, the court will be responsible for deciding how parental responsibilities are to be divided, taking into account the current legal criteria for awarding shared custody and the existing case law on the matter.
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The law establishes that legal separation or divorce involving minor children does not alter the responsibilities that parents hold towards them. In practice, the general principle that the breakdown of cohabitation between parents automatically excludes one parent from the children's lives, leaving sole custody to the other, has been abandoned. As a result, these parental responsibilities retain their shared character after separation or divorce.
What is co-parenting or shared custody?
The guiding principle underpinning the entire current legal framework rests on the idea that co-parenting and the maintenance of shared parental responsibilities genuinely reflect the child's interest in continuing to have a stable relationship with both parents. The aim is to uphold a principle of equality between parents in relation to their children, so that, as far as possible, winner-and-loser dynamics are eliminated.
All of this means that, in practice, legal separation or divorce involving minor children should not in itself alter the parents' duty to care for their children, to have them in their company, to provide guidance on upbringing, to meet their needs in every sense, and to support them in all areas of their lives. What is paramount is the child's right not to be deprived of either parental figure, whose presence is essential to guarantee their full development. It is therefore the "best interests of the child" that serves as the primary criterion for determining whether that right will translate into shared custody or sole custody.
When we talk about child custody, it is important to understand that this concept sits within a broader framework known as "parental responsibility", which divides into two distinct aspects: on one hand, parental authority, and on the other, custody in the strict sense.
It is essential to grasp that custody forms part of parental responsibility, as one element of it, because only then can we understand that custody, in legal terms, is simply a function tied to the day-to-day living arrangements between a parent and their children. In other words, talking about custody is, at its core, talking about where minor children live and spend their time. That said, awarding custody jointly to both parents, or exclusively to one parent, does not, contrary to common belief, determine who holds greater decision-making power over the child.
With this in mind, and understanding that the allocation of custody does not affect the authority each parent holds over the children, this issue should not be as contentious in matrimonial proceedings as it often is. As the law makes clear, legal separation or divorce involving minor children does not alter the shared nature of parental responsibilities. The fact that the parents' cohabitation comes to an end does not mean they cease to be parents, and therefore they remain equally responsible, between themselves, for the care and upbringing of their children.
It is therefore vital to bear in mind that core decisions affecting the children, such as their place of residence, any subsequent changes of address, choice of school, their secular or religious upbringing, medical care including surgical procedures, choice of paediatrician, and curative or preventive treatments (except in cases of urgent necessity), as well as non-core matters such as the choice of extracurricular activities (whether educational, sporting or recreational), will, in the vast majority of cases, require joint agreement between both parents, regardless of the custody arrangement in place. These matters, those forming the core decisions, fall squarely within the scope of parental authority, which, save in exceptional cases of deprivation or suspension, is always shared.
HOW OFTEN IS SHARED CUSTODY GRANTED?
From the ruling 185/2012 of the Constitutional Court dated 17 October 2012, which declared unconstitutional the requirement for a "favourable" report from the Public Prosecutor as a condition for granting shared custody, through to the ruling of the Supreme Court of 29 April 2013, which established that shared custody should be regarded as normal and even desirable on the basis that it gives effect to children's right to maintain a relationship with both parents, shared custody has progressively become the preferred model.
In many cases, though not all, the shared custody model is indeed the arrangement that best promotes a clearer understanding of each parent's true responsibilities. This is particularly relevant where the parent who has held sole custody has overstepped their authority, assuming a special power over the other parent that they do not in fact possess.
