In matrimonial divorce or separation proceedings, as well as in proceedings for parental measures, i.e. in the case of non-marital children, the two parties have to prepare a written document called a settlement agreement.
In it, the agreements reached on the various personal and property aspects are stipulated. Its purpose is to regulate the effects and consequences of separation or divorce, and to set out the rules that should exist between the parents if they are not married.
How is the joint custody model structured?
There is no closed template of the joint custody model, so it can be customised according to the particular situation of both parents. All models have the common objective that the care of the children is shared equally.
The models of joint custody and guardianship can be structured in different ways in terms of time, the most common being to establish the cohabitation of the children with each parent by weeks, fortnights, alternative semesters.
Likewise, all of them must set out the habitual place of residence of the children in each period of time. The most frequent option is that the children always remain in the family home and that the parents settle alternately in their respective custody period. There is also the possibility of establishing the children's habitual residence in the home of each parent.
Clauses of this type of agreement
The agreement must include at least the clauses referring to the following aspects:
- Exercise and development of parental authority.
- Economic obligations of the parents, specifically the alimony if necessary and the distribution of the ordinary and extraordinary expenses of the children.
- Organisation and functioning of shared custody, referring to how it is to be carried out, ordinary visiting arrangements, division of holiday periods and special days.
Approval of the joint custody agreement
The procedure for approval of the agreement is defined in article 777 of the Spanish Civil Procedure Act and stipulates that the parties signing the agreement (represented and assisted by a solicitor and lawyer, respectively) must present the document to the competent family court.
Subsequently, they are summoned for final ratification and once the agreement has been ratified, it is transferred to the Public Prosecutor's Office for a report to be issued. Finally, the document must have the approval of a judge who can only reject the agreements reached if they are detrimental to the children or one of the parties, as explained in Article 90.2 of the Civil Code.
What happens if no agreement is reached between the parties?
In situations in which an agreement cannot be reached between both parties, the procedure to establish shared custody and guardianship will be carried out in a contentious manner, that is to say, it will be the judge who will rule on the regime that he/she considers most appropriate for the children.
Modification of the agreement regulating shared custody
Article 90.3 of the Civil Code stipulates that the measures adopted by a judge may be modified judicially in two ways. Firstly, by a new agreement when the new needs of the children so require or the second way is when there is a change of circumstances of the parents.
In this way, it is possible to change the agreement by signing a new one that contains all the modifications previously achieved, or by means of a contentious procedure of modification of measures.