This is a question with a lot of opinion, this of joint custody, since there is no shortage of opinions in the general press, specialized sites and radio and television talk shows.
But really, what is joint custody? It is usually defined as the legal situation through which, in the event of marital separation or divorce, both parents exercise legal custody of their minor children, under equal conditions and rights over them.
That is to say, instead of one of the parents being in charge of the care and attention of the children, with the other having the right to visitation and the obligation to pay alimony, in the case of shared custody, there is a distribution, in principle equal, of the time in which each parent lives with the common child(ren) and at the same time a participation, in principle, equal in the expenses generated by the children.
Regarding the place of coexistence, it can be articulated, through different ways, in no case exclusive of others. A domicile for the children can be established, so that the parents are the ones who transfer their residence during the time that corresponds to the exercise of custody, or through the existence of a domicile for each of the parents, so that The children are the ones who move the residence, during the time they live with each parent.
Joint custody has undoubted advantages, especially derived from the commitment of both parents towards the children, which introduces transparency into their relationships and prevents the children from being a weapon to be used against the other. As a counterpart, it requires that both parents have conditions, especially economic ones, that allow them to cope with it.
The figure of shared custody was introduced in the Spanish Civil Code, with the reform of the divorce regulation operated in 2005, providing that it can be attributed by the judges, at the request of both parents, and exceptionally, at the request of one of them, in the interest of the minor. The judgment of the Supreme Court 257/2013 of April 29, that so much information has caused in the press, it has established the requirements, on which the judge must base himself, in the interest of the minor, for custody to be shared, which are the following: petition of both or one of the parents; that is convenient for the minor and not harmful; the practice of the parents with the minor prior to the lawsuit; the wish of the minor; the number of children; compliance of parents in their duties in relation to their children; parental relationships and mutual respect; and others to take into account for the adequate coexistence of the minor.
However, we must bear in mind that Spain is a country with a plurality of legislative systems, and thus, in addition to state civil legislation, also called common, there are some autonomous communities, which have their own rights, and which have regulated the consequences of divorce. Within these legislations, are the Catalan and the Aragonese.
The approval of Book II of the Civil Code of Catalonia regulates the figure of joint custody, but does not establish it as a general rule. In Catalonia, the law obliges parents when applying for divorce to establish a “parenting plan” with his proposals on child custody. But joint custody in Catalonia is conditional on the parents agreeing to it and that it already exists before the separation, for which the time dedicated to the children before the breakup will be valued. In the absence of an agreement or if it is not approved, the judicial authority determines the way to exercise guardianship", and although it leaves open the possibility that the judge recognizes "the joint nature of parental responsibilities", it also specifies that it can provide that "guardianship is exercised individually if this is the most appropriate for the interest of the child."
It has been, the Aragonese legislation, the one that has taken the most advanced step in this matter of joint custody, because according to article 80 of the Code of Foral Law of Aragon, since the Judge will preferentially adopt joint custody in the interest of the minor children, unless individual custody is more convenient, taking into account the family relations plan that each of the parents must submit and also taking into account the following factors: a) The age of the children. b) The social and family roots of the children. c) The opinion of the children provided they have sufficient judgment and, in any case, if they are over twelve years of age, with special consideration for those over fourteen years of age. d) The aptitude and willingness of the parents to ensure the stability of the children. e) The possibilities of reconciling family and work life of the parents. f) Any other circumstance of special relevance to the coexistence regime.
The objection to joint custody of one of the parents who tries to obtain individual custody will not be sufficient grounds to consider that joint custody does not coincide with the best interests of the minor.