Child Custody Laws in Spain

Updated on Thursday 30th April 2020

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One of the legal matters that are dealt with during a divorce in Spain is the custody of the children, for the couples who had children during the time of their marriage or in the case they adopted children. The manner in which the custody of the children is granted to parents depends on a set of factors and, depending on how the custody is decided, child maintenance will also be allocated. 
 
The Spanish laws regarding the custody of children distinguishes between four categories of custody and it also takes into consideration the age of the children during the custody arrangements, in the sense that the custody for children with an age below 13 years old will be established by the court. In most of the cases that fall under this situation, the custody is either joint custody (granted to both parents), either is granted to the mother. 
 
However, in the case of children with an age above 13 years old, the decision of the custody will be influenced by the children’s views on this matter. According to the applicable legislation, the custody of the children can be granted to either parent, but it must be noted that in practice, custody is generally granted to the mother. 
 
In the last few years, the views on custody of children in Spain have modified, in the sense that the law also protects the importance of the father in the development of the children and thus, the custody can also be easily granted to the father, but this depends on the circumstances. More details on how this procedure can be carried out here can be presented by our divorce lawyer in Spain
 

What types of child custody are available in Spain? 
 

During a divorce in Spain, the courts will decide on various legal aspects regarding the marriage that will be dissolved, such as the common property of the spouses, the division of assets, the custody of the children and the alimony. Currently, the legislation in Spain distinguishes between the following types of child custody
 
  • single parent custody – it represents a very common type of custody granted in Spain, which refers to the fact that a sole parent will receive the right of raising the children (while establishing specific rights and obligations for the non-custodial parent);
  • distributed custody – this option refers to the fact that both of the parents will have the custody of the children for alternate periods of time;
  • split custody – it defines a term through which the custody of one (or more) child is granted to a parent, while the custody of the remaining children to the other parent, but in practice, this is rarely the case, as specific legal grounds can be invoked for this type of custody;
  • joint custody – a type of custody in which both parents have equal rights on raising their children after the divorce is finalized. 
     
It must be noted that the Spanish rules of law generally protect the custody of the mother, but there are Spanish regions in which the legal procedures will favor the custody of both of the parents, as long as there is sufficient evidence that both parents have respected their obligations towards their children during the time of their marriage. 
 
Persons interested in the legislation regarding the custody of minor children in Spain should know that the Spanish legislation does not distinguish between married and unmarried couples when custody is involved, as long as the filiation was established (meaning, the fact that a child is the child of a given parent and the parent recognized the respective child as his/her own), as per the Article 108 of the Spanish Civil Code, which can be presented by our divorce lawyer in Spain
 

What is the data on custody in Spain? 
 

The statistics regarding the custody granted upon a divorce in Spain are analyzed by the National Institute of Statistics. In the last few years, the number of cases where joint custody was awarded increased at a rapid pace, but this mostly happens in the situations where the parents are interested in reaching a mutual agreement during their divorce. Based on the data presented by the Statistics Institute, we present the following: 
 
  • in 2018,  from the total number of 99,444 dissolutions of marriages, the rate of joint custody was of 33,8%;
  • this marked an increase of 11,9% compared to 2017;
  • from the total number of separations, 45,1% of the divorced couples had minor children;
  • 25,4% had only 1 minor child or 1 economically dependent adult child;
  • in 2018, the custody of minor children was granted to mothers in 61,6% of the cases; 
  • compared to 2017, this marked a decrease, as in that year, the rate was 65%. 
     
Those who are interested in the procedure of divorce in Spain and, more specifically, in the manner in which they can obtain the custody of a child (or children) are invited to address to our lawyer. Our divorce lawyer in Spain is ready to provide legal representation and in-depth advice on the procedures that will be started once a spouse (or both) files for divorce.