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- Divorce Law in Alicante
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- Divorce Law C. La Mancha
- Divorce Law in Castilla y Leon
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- Divorce Law in Extremadura
- Divorce Law in La Rioja
- Divorce Law in Madrid
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Articles and Guides
- NEW: 10 Must Know Facts For
Anyone Divorcing in Spain
- Alimony in Spain
- Child Custody in Spain
- Division of Matrimonial Assets
- Govt. Assistance Fund
- International Divorce
- Child Maintenance Payments in Spain
- Comparison of UK & Spanish Law
- Enforcing Maintenance Agreements Abroad
- Reducing The Cost of Divorce in Spain - Express Divorce
- What Happens If Divorce Terms Ignored
- The Marital Home After Divorce
Legal Background to Child Custody
The law in Spain states that, following the end of a marriage, custody of the children may be awarded to either parent.
Although there have been recent developments that suggest the judiciary is beginning to apply more weight to the role of the father in the upbringing of the children, in approximately 95% of cases, custody is awarded to the mother of the children.
In Spain, in order for the custody of younger children to be taken from the mother, it would be necessary to demonstrate some type of incapacity on her part to look after them.
However, once the children are 13 years of age (or less if they demonstrate sufficient maturity) they will be heard by the court before any judgment is made that will personally affect them.
It may be the case of course that the spouses come to an agreement between themselves that sets out the custody of the children including the visitation rights of the spouse who does not take custody. This would have to appear in the divorce agreement.
Assuming that the agreement does not put any child at risk in any way the judge will ratify such an agreement.
Factors Relevant to the Court
In the absence of an agreement the court will take the following factors into account:
• Brothers and sisters should not be split-up
• The emotional requirements of the children
• The closeness of other relatives to the children (grandparents etc)
• The ability of one or other of the parents to better look after the children
• Whether either of the parents has an addiction or other psychological condition
But the factor that tends to carry most weight is the dedication of each parent towards the children before the breakdown of the marriage. It is for this reason that the courts almost always award custody to the mother.
Once custody has been established it becomes necessary to determine the visitation rights that the non-custodial parent may enjoy.
The typical arrangement in this regard is for the children to spend alternate weekends with the non-custodial parent and 50% of the holiday periods. However this is also in the process of changing and more and more often mid-week visits are also arranged.
The age of the child is taken into consideration when determining the appropriateness of overnight stays with the noncustodial parent, and typically very young children and infants would not do so.
While the non-custodial parent has the right to enjoy the visitation rights agreed with the other spouse or as decided by the judge, there are other ancillary rights that they enjoy:
• Be informed of any important incidents involving the children
• Continue having the right to make decisions with regard to the upbringing of the children
• Have recourse to the judge should there be a failure to complete the terms of the visitation schedule
Once the children reach 13 years of age they may have their opinion taken into account with regard to establishing the timetable and dates of visits with the non-custodial parent.
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