Joint custody — a pipe dream?
The government wants to bring Spain’s divorce laws in line with the rest of the European Union But legal experts say the system lacks the necessary resources
If the government’s draft legislation on co-parenting goes ahead, say legal experts, Spain’s already overburdened and underfunded courts will not be able to deal with the expected avalanche of requests for joint custody of children by divorced or separated parents.
Judges say the experience of regions such as Aragón and Valencia, which have already approved co-parenting laws, shows that without sufficient resources and funding requests for joint custody have often taken several months to be heard.
Justice Minister Alberto Ruiz-Gallardón last week announced that the government intends to present draft proposals that would give equal status under law to joint custody.
“This new law will significantly increase the work of family courts, most of which are already overloaded, and could simply grind them to a halt,” says José Luis Utrera, who presides over a family court in Málaga. “As soon as this becomes law, we are expecting an avalanche of parents asking for joint custody, and this will not only affect courts but also social workers and psychologists whose job is to assess which of the parents is better equipped to be given custody, or whether both parents would be able to manage joint custody.” Utrera’s concerns are shared by other family court judges such as Teresa Martín Nájera and Margarita Pérez Salazar, in Madrid and Navarre, respectively
Pérez says that when Navarre introduced joint custody legislation in 2011, the courts were inundated. Of particular concern, she says, is that the government’s proposals allow for either parent to appeal against the original decision of a court, requesting a new hearing on the basis of an application for joint custody. This would require the judge hearing the case to ask social workers and psychologists to provide a report on each of the parties involved.
Shared care is far from the rule
Announcing the government’s draft proposals to extend the practice of joint custody in divorce cases last week, Justice Minister Alberto Ruiz-Gallardón had his sound bite ready: “Co-custody will no longer be an exceptional measure in Spain.” He then clarified his comments by saying that it wouldn’t become “the preferred or general” practice.
The statistics show that in reality, even in regions where co-custody is an option on the statute books, most judges continue to give custody to the mother.
Aragon. The approval of pioneering legislation recommending that judges give preference to co-custody arrangements in divorce cases initially saw a spike in the numbers of cases where both parents were given guardianship of their children. But two years after the law was introduced, the number of cases in which the mother is granted custody has gradually increased.
In 2010, of the 1,192 divorce cases in Aragon, 174 ended in joint custody; the following year the figure rose to 234.
Catalonia. A few months after Aragon's legal change, Catalonia followed suit with a similar custody law — though one said to be less radical than that of its neighboring region.
Although Catalonia is now in favor of shared custody, the main difference is one of an implied, rather than a formal, preference for shared custody. If there is no agreement between the parents in Catalonia, the judge is directed to award custody according to the shared nature of parental responsibilities.
The law in Catalonia does not give priority to joint custody, and as with the Justice Ministry’s proposals, it is left to the judge overseeing the divorce to decide. Of the 9,682 divorces that took place last year, custody was granted to the mother in 7,142 cases, with just 2,014 separations ending in joint custody.
Valencia. The same trend as in the rest of the country: of 6,875 cases in 2011, 949 ended with joint custody, compared to 5,540 where the mother was granted custody. Again, as in the rest of Spain, barely a handful of cases saw the father gain custody: 386.
Aragon and Valencia introduced legislation in 2010 and 2011, respectively, making co-parenting the first option for the courts in divorce cases. There was an immediate increase in requests for previous rulings to be revised from parents unhappy that they had not been granted custody.
In the year prior to the new legislation in Aragon, there were 448 such requests: in 2011, the figure had almost doubled, to 776. To reduce the bottleneck and free up the courts, the regional government’s justice department had to double the number of social workers and psychologists assigned to its three family courts in Zaragoza. A private company had to be brought in to clear up pending cases, which provided another two psychologists to the team of six. There were delays in dealing with requests for joint custody of up to nine months.
It was the same story in Valencia: there were 2,232 requests for joint custody in 2010; in 2012, after the new law came into effect, there were 3,638. But some judges say the increased popularity of joint custody may be due to other factors: “It is difficult to know whether the increase was in response to the new law, or whether it reflected the economic crisis, which has obliged many parents to ask for joint custody because neither of them can afford to bring up the child or children alone, or pay the allowance decided by the court,” says Pedro Viguer, a senior judge based in Valencia.
Valencia authorities did not increase the number of psychologists and social workers attached to the region’s four divorce courts. “On the contrary, we lost one of the six psychologists, as well as the only social worker,” says Viguer, adding that the team was also assigned to other courts dealing with domestic violence and invalidity cases, as well as the provincial court’s family section. “Beforehand, it took between three and four months to process a divorce, but because of the delay in preparing psychological and other reports, it can now take up to a year,” says Viguer. “And that is without taking into account town courts, where there are no social workers or psychologists and the plaintiffs themselves have to pay for a psychological report: the outcome is a two-tier justice system.”
The Justice Ministry in Madrid is playing down fears that such delays might be repeated on a national scale if the new legislation comes into force. Gallardón says that to begin with, in contrast to Aragón and Valencia, his draft proposals do not empower judges to give joint custody any kind of priority. Judges will decide each case on what is in the best interests of the children. He has also pointed out that unlike Aragon, where either parent was given just one year within which to make an appeal, “In our draft proposals, no time limit has been established, the idea being to avoid interested parties from rushing to appeal against a decision,” says a ministry spokeswoman.
Under the government’s proposals, each parent would have to request a review of the judge’s original decision on custody. “There is no reason why there should be an avalanche of appeals against previous custody decisions; as long as the requirements are in place, a request can be made at any time,” says the ministry spokeswoman.
We are expecting an avalanche of parents asking for joint custody”
The government insists that there is no reason why psychologists and social workers attached to family courts will suddenly find their workload significantly increased. “These reports are only requested when the judge deems it necessary, and are not obligatory or decisive in deciding which parent should be given custody; they are simply another piece of evidence to be taken into account.”
Viguer says that in reality, “the overwhelming majority of judges ask for these reports when they are assessing custody — when the couple decides to separate, or later, when measures are being decided.”
He adds that the problem of matching resources with good intentions is far from new to Spain: “We have a Scandinavian outlook when it comes to passing laws; the problem is that when it comes to resources, our reality is more akin to Africa.”
“Family meeting centers do a great job, but there aren’t enough”
Divorce rates in Spain have soared since a new law was introduced by the Socialist government in 2005, putting a strain not only on courts, but on a range of services such as mediation and family meeting centers.
In June 2005, the government of José Luis Rodríguez Zapatero introduced legislation, known as the “express divorce” bill, to make the process easier and faster. It eliminated the need for couples to be physically separated for a period before legal proceedings could begin.
Separated or divorced parents living in Madrid, Murcia, or the Canary Islands, whose access to their children is limited to a family meeting point, often have to wait up to a year before a slot is available. There are 130 such family meeting points in Spain where parents who have not been granted custody or co-custody of their children, and are unable or unwilling to see them at their former partner’s home, can do so in the presence of social workers.
The problem is that there are not enough centers. In three regions of Spain, there are long waiting lists, which is why some judges do not see family meeting points as the solution in acrimonious divorce cases. “I try to avoid these centers, although in cases where the child is at risk, there is no option. I know that the outcome will be that the parent and child will not see each other,” says Carmen Rosa Marrero, a judge in Tenerife. “They do a great job, but there are not enough resources.”
There are only two family meeting centers in the Canary Islands: one in Tenerife, and the other in Gran Canaria, with a waiting list of more than 80 between them. In Murcia, some 20 parents face a six-month waiting list to visit their children at one of the region’s two meeting centers. Marrero says her goal is to help maintain the relationship between parents and children, except in cases involving abuse or violence, or when the parent has no interest in seeing his or her child, “which doesn’t normally happen.”
Faced with long waiting lists, she says she sometimes seeks other solutions that avoid separated couples from having to see each other, depending on each case: the father or mother can pick up the child or children from school, or a relative can act as an intermediary. But judges do not always have such options. There are cases where a visit has to take place in a family meeting center, or in the presence of a social worker.
“I don’t need reminding about how effective these centers are; the problem is that I can’t use them,” says a Madrid-based judge who prefers to remain anonymous. And, like Marrero, she too has had to find her own solutions if parents are to see their children. There are 14 family meeting centers in Madrid now after the regional government closed six in 2012.
Julian Adalid was given permission by a court to see his three grandchildren once a month. He ended up waiting 15 months for his first visit to a family meeting center in the Madrid dormitory town of Móstoles. When he finally got to meet his infant grandchildren, they did not recognize him.
Long waiting lists are not the only problem. Sandra Jiménez, a psychologist at a family meeting center in Jerez de la Frontera, Cádiz, says the regional government of Andalusia has privatized the management of these centers.
“Before, the important thing was the quality of the staff, their experience, and the way the center was run, but now the main criteria are whether the place is cost-effective. These centers are now in the hands of the lowest bidder,” says Jiménez, adding that the management of more and more family meeting centers is being put out to tender.
