Joint custody — a pipe dream?

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.

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.”