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Divorced parents sharing children

Joint custody should favor the child and could lead to new social norms

Bowing down to a demand from a certain social sector, Justice Minister Alberto Ruiz-Gallardón has announced his intention to reform the Civil Code to make it easier for divorced parents to have joint custody of their children. The announcement comes after the regional governments of Catalonia, Valencia and Aragon had already incorporated into their laws similar changes made by lawmakers in their own parliaments.

In Spain, in addition to what is stated in the law, the common practice gives sole custody to one of the parents — in most cases the mother. In fact, in only 10 percent of separation cases will judges allow joint custody — if there is a report filed by the state prosecutor's office, as stated under the current Civil Code. What the Justice Ministry intends to do now is not to make joint custody compulsory in all divorces, but instead permit it as another option, which, when it is put into practice, could serve as an incentive to ensure that it becomes the norm. In this manner, the law adapts to the reality that fathers are becoming more involved in raising their children and, at the same time, foments the equal sharing of family responsibilities, which today remains disproportionate.

In Spain, according to some studies, more than 90 percent of workers who ask for leave or a reduction in their working hours to take care of their families are women. And it is precisely mothers who dedicate at least four times more, in terms of time, than fathers to childcare. Those who are against joint custody use these figures to argue that it would impair the parent — usually the mother — who spent the most time in raising and educating a child before the separation.

There is nothing more important than giving judges the necessary flexibility in such delicate issues, with broad ambiguity, the right to determine on a case-by-case basis with a preeminent objective, as they do now, what is best for the child of a failed marriage. The new formula, in any case, may sometimes be applied unfairly and impair one of the parties in conflict. But it seems no longer acceptable to automatically delegate visiting privileges to the father.

Changes to the Civil Code that are currently being proposed will give, among other things, legal protection to the modifications already introduced in the aforementioned regions, especially in Valencia, which saw the law thrown out last year by the Constitutional Court when it ruled that it violated the separation of powers in such matters.

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