Measures Regarding Minor Children in Case of Family Breakdown - An Analysis of Custody

Abstract

This paper deals with the legal changes introduced by the Spanish Act 15/2005, 8 July, on Civil Code reforms regarding custody of children in case of marriage or family breakdown. The paper also focuses on subsequent legislative developments within Spanish autonomous communities, as well as on enforcement of such regulation by the judiciary. The paper calls for clarifying the concept and content of joint custody, due to the social importance attached to it. By emphasizing the different legal models of custody, as well as the consequent terminology used by different legal bodies, we wonder if such situation is leading to different judicial decisions and, therefore, to a different treatment of citizens depending on their territorial law. In order to solve these concerns, we analyze the criteria the Courts should apply to grant, case by case, the most suitable custody regime and how they apply these criteria for achieving the principle of the best interest of the child. Finally, we refer to the influence of a child’s custody regime on other effects resulting from the marriage or the family breakdown such as the allocation of the use of the family dwelling or child support orders, taking into account the existing regulation in several autonomous communities.