¿Cómo motivan los jueces la capacidad de los progenitores en las resoluciones judiciales?

Abstract

An analysis of the Spanish judicial sentences (Arce, Fariña, & Seijo, 2005) in 2005 found that there was not legal reasoning in the decisions of courts and judges concerning litigant custody proceedings. A new law was promulgated on separation and divorce issues, Act 15/2005. Seven years after the promulgation of this law, an archival study of judicial reasoning was carried out to know its effects on sentencing. In this study, 468 custody litigant judicial sentences since 2005 were randomly selected –resulting in 71.5% custodies assigned to the mother and 22.5% to the father. A reliable and valid systematic content analysis identified the legal reasons for custody and their relation to parental gender. The study showed that all sentences were motivated. The most relevant reasons for custody assignation were the following: being primary caregiver, time availability, adverse events experienced by the child in his/her life with his or her parents, enhancing child's overall development and satisfaction of needs, extensive family support, better child's living conditions, and parental personality characteristics. Father custody assignment was associated with the three latter characteristics. Implications of results for forensic psychological evaluation of child custody are discussed.