When a person is immersed in a separation or divorce procedure in which there are minor children, they question what type of custody there are and which is better for their children. Fortunately, the law has different options, which can be adapted to each family and minimize the impact of the process.
The 4 types of custody that we currently have in Spain are the following:
1. Custody and custody of a single parent or exercised by a single parent.
2. Guardianship and joint custody.
3. Guardianship and split or distributive custody.
4. Guardianship and custody exercised by a third party.
Before explaining in detail the types of custody that exist, we want to ask you a question: Is parental authority the same as guardianship and custody? The answer is no.
Parental authority is the set of powers and duties that correspond to parents to fulfill, over minor children, not emancipated or disabled, which includes the following functions:
- Comprehensive education and training: behavior, studies, culture ...
- Assistance: daily care, attention, hygiene, health….
- Administration of their property: although the property of the children belongs to them, their administration corresponds to the parents, with exceptions.
- Representation: parents have the legal representation of their minor, non-emancipated or disabled children.
It must also be borne in mind that custody is the set of ordinary decisions that affect daily coexistence with children.
What types of custody and custody are there?
Guardianship and custody can be given to one of the parents (single-parent custody), to both parents (joint custody), to distribute the children between the parents (distributive custody), or to grandparents, relatives or other persons (custody attributed to a third).
If there is a situation in which the spouses argue to see who takes the children, the judge when deciding what will take into account the best interests of the minor.
Single parent custody and custody
It is the most common form of guardianship and custody, in it the children are assigned to one of the parents called "custodial parent".
In the event that the parents are not satisfied with what was approved by the judge, the family home will be assigned to the parent who has won single-parent custody.
The custodial parent will be in charge of managing the alimony corresponding to the children.
It must also be taken into account that the parent who does not have the minor children (non-custodial parent) will enjoy the right to visit, communicate and stay with them.
Guardianship and joint custody
Taking into account what we have explained before that single-parent custody is the most common, joint custody happens more frequently and should be normal according to the doctrine of the Supreme Court.
In this type of custody, the two parents may be with their children for different periods of time (fortnights, months, quarters ...).
The father and the mother can make decisions on equal terms about the care of the children.
Family judges try to ensure that joint custody is the usual custody as far as possible, because it generates fewer consequences for the minors and apart from the economic point of view it is more equal for the two ex-spouses.
Guard and custody split or distributive
The Civil Code, when dealing with the attribution of the use of the family home in divorce, refers to this type of custody, by saying:
When some of the children remain in the company of one and the rest in that of the other, the Judge will decide what is appropriate.
It is the situation in which the family has two or more children, the judge will have the possibility of assigning the custody of some children to one parent and the custody of the rest to the other parent, but always for justified reasons.
It is very limited by the principle of family unity, which indicates not to separate the siblings, except in justified cases. This is the least used way.
Guardianship and custody attributed to a third party
This form of custody and custody is regulated by article 103 of the Civil Code. It is a form of extraordinary custody and custody, which will always be agreed in the interest of the minor.
It may be agreed by the Judge in the event of extraordinary circumstances that prevent the granting of custody to the parents or to one of them (such as abuse, abandonment of family ...).
As a result we have that when exceptional circumstances occur, custody and custody may be attributed to:
- The grandparents.
- Other close relatives.
- People who consent to it.
- If none of the above is given, to a suitable institution
The best guardian and custody, is a happy minor
In short, there is no one type of guardianship better than another. Any of the forms of custody must be agreed based on the best interests of the minor.
We advise you to have the advice of a lawyer specializing in family law to explain all the available options and which one is the most recommended for your specific case.