Child custody: Legal keys to understand your parental rights and duties
Regulatory
The custody of children is regulated in articles 92-94 of the Civil Code.
Difference between parental authority and guardianship and custody
Parental authority and custody are distinct but interrelated concepts that often cause confusion.
Therefore, it is crucial to understand the difference between the two first and foremost.
Custody
Parental authority is the set of rights and obligations that parents acquire over their children from birth until they reach adulthood or become emancipated.
It involves living with them, caring for them, feeding them, educating them and ensuring that they receive comprehensive training, managing their assets and representing them in general, among others.
It involves making significant decisions in the lives of your children.
Guard and custody
On the other hand, custody is the responsibility that parents have to take care of their children who are not economically independent in their daily lives.
This allows decisions to be made unilaterally.
Marital relationship context
In the context of a marital, partnership, or cohabitation relationship, the ownership and exercise of parental authority, as well as the custody of minor children, usually correspond to both parents.
However, when a marriage, a relationship, or cohabitation breaks down, this may change.
Regarding parental authority, one of the parents could be deprived of the ownership and exercise of parental authority , or it could be granted to one of the parents with the consent of the other.
The most common practice is to maintain joint parental authority for both parents.
Regarding custody, it can be assigned to one, to the other, or to a third party (sole custody) , to both in a shared manner (shared custody), or from some children to one and from other children to another, separating the siblings (distributive custody).
Although, over time, new custody modalities have emerged to adapt to the specific circumstances of each family.
For example, progressive shared custody has recently emerged.
In this model, we gradually move from exclusive custody in favor of the mother, because the children are very young and need the mother more, towards shared custody, progressively increasing the time that the children spend with their father.
Legal aspects to consider in custody and guardianship
Individual or shared custody
The parents can agree that custody be awarded to one of them individually or to both in a shared custody modality.
If you opt for shared custody, it is necessary to establish a regime of alternation for cohabitation with each parent and determine the main domicile of the children.
Regime of visits, communication and stay
The visitation, communication and stay regime of the non-custodial parent must also be defined to guarantee that the parent can spend time with the children, communicate with them and maintain a close relationship.
In situations where individual custody is agreed upon, the use of the family home is usually attributed to the children and the custodial parent.
In contrast, in cases of shared custody, it can be agreed that the use of the home be granted to the cohabitant with fewer economic resources.
Child support
Child support payments are another important aspect to consider, as they cover foreseeable and necessary expenses for the children's sustenance , such as food, decent housing, medical care, education, among others (it does not include extraordinary expenses).
This pension must be paid until the children reach the age of majority and are financially independent.
Compensatory benefit in favor of the parent
Regarding compensatory payments for the parent experiencing economic imbalance, although there is no specific state regulation on this matter, couples can agree to it in cases of de facto couples.
Procedure for deciding custody and guardianship
The decision regarding the custody of minors is made within the framework of legal processes such as separation, divorce , annulment, or the adoption of parental measures in de facto couples.
Therefore, the specific procedural rules established in Articles 770 and 777 of the LEC will apply.
Guardianship and custody measures may be determined, in all cases, by common agreement through the presentation of a regulatory agreement, or may be requested by one of the parents through a contentious procedure.
To start the process, it is necessary to file a lawsuit in the Civil Court of First Instance of the family domicile or of the defendant.
This process will be carried out as a verbal trial with certain particularities:
- The deadline to respond to the request is 20 days, unless another period is established, as in the contentious procedure, which will be 10 days.
- Oral conclusions will be made in the trial after the taking of the evidence.
- Priority will be given to the process if any of the interested parties is a minor, has a disability with judicial support measures with representative functions or is in a situation of legal absence.
Modification of definitive measures related to custody and custody
If the needs of the children or the circumstances of the parents change, it is possible to modify the type of custody adopted in the process of separation, divorce, annulment or adoption of parental measures.
This can be achieved through a new proposed regulatory agreement , if there is agreement, or through a request for modification of definitive measures in case of disagreement.
Guardianship and custody in favor of grandparents
Under Article 103.1 of the Civil Code, the possibility of entrusting the custody of children to grandparents, relatives or other persons who so consent is exceptionally established , or failing that, to a suitable institution.
These specific situations include, for example, when parents have lost parental rights over their children, both parents have died, or they are in a situation of incapacity to exercise their responsibilities , whether due to drug addiction, substance abuse, or imprisonment, among others.
To initiate the procedure and request custody of the grandchildren, it will be necessary to file a lawsuit before the corresponding Court of First Instance and demonstrate conclusively that the well-being of the children will be better protected under the care of the grandparents and by removing parental authority from the parents.
This statement will have to be supported with evidence and the Judge will also evaluate the situation of the grandparents, considering aspects related to their health and economic situation to determine if they are qualified to assume custody of the grandchildren.
RRYP Global , expert lawyers in child custody.
