GUARDA Y CUSTODIA COMPARTIDA:

Abstract

The regulation of shared custody was first introduced in our legislation by Law 15/2005 e 8 de julio, por la que se modifican el Codigo Civil y la Ley de Enjuiciamiento Civil en materia de separacion y divorcio . After this reform, guardianship and custody of children is regulated mainly in articles 90.1 a) and 92, both of the Civil Code. This type of custody, which existed in other European legislation, was introduced to observe a judicial practice in this regard. That means that even before 2005, we can find some judicial decisions related to joint or shared custody. Before 2005 this model of guardianship was not allowed but not expressly prohibited by our legislation. Before 2005, the only existing possibility was the sole custody where one parent spent much time with their children, while the other enjoyed visitation. But this only possibility seems to have become obsolete. There have been, however, few reviews that this reform has received. In Spain, at regional level, we find communities that have regulated this figure exclusively, such as Aragon, Catalonia, Valencia or Navarra, while regulation at European level dates from previous years. All these laws refered to joint custody are mainly based on international guidelines such as the Convention on the Rights of the Child, proclaimed by the General Assembly of the United Nations on 20 November 1989 which enshrines the right of the child to interact with both parents as more beneficial to him. In this sense, and in making any decision that may affect a child, must always prevail in the best interests of this or beginning favor filii. This model of custody implies that both parents have the possibility of remaining periods of roughly equal time with their children, although never shared custody necessarily imply that these times stay with the children should be exactly the same. It seems that this is a beneficial arrangement for the child, with many more advantages than disadvantages, but given the current regulation requires the agreement of the parents. This is the main problem, and so we will see when we do the doctrinal and jurisprudential study. When is a court that imposes certain rules of coexistence is often much more difficult compliance. Moreover, it is a system in which especially the relationship between the parents, their willingness to reach agreements and requesting decisions, are always the least harmful for their children are valued. As a result, a new regulation of shared custody along with a state law family mediation to unify the criteria established by the Autonomous Communities, could be a big step forward as a marital crisis concerns. The first step is found in the draft law on the exercise of parental responsibility in the event of annulment, separation and divorce, adopted on July 19, 2013 (Anteproyecto de Ley sobre el ejercicio de la corresponsabilidad parental en caso de nulidad, separacion y divorcio, aprobado el 19 de julio de 2013). This possible new regulation could become a major new family law. It is therefore a current issue that the shared custody will soon become the normal and ordinary situation exercise of parental authority regarding care, education and sailing of minor children and keep them in the company of parents.