What is single-parent custody?

Should sole custody be by mutual agreement between the parties?

This is not always the case, i.e. separation/divorce proceedings may be processed by mutual agreement and, therefore, it is the parents who agree by consensus that custody of the children be assigned exclusively to one of them. 

In other cases, however, they do not reach an agreement, so the proceedings are carried out through contentious proceedings, where the judge finally decides whether it is in the best interests of the child to award custody to one of the parents or whether it is better to adopt a system of shared custody. 

If there is no agreement between the parties: can one party demand sole custody?

In situations where there is no agreement between the parties on custody, the so-called contentious process is used and either parent can request the allocation of custody to him/herself. It is quite common for both parents to ask for custody for themselves, so the judge has to decide which parent is the most appropriate to have sole custody.

In order for the judge to decide on custody within the contentious judicial process, he or she may use evidence such as:

- Psychosocial report, which consists of psychologists assigned to the court interviewing the members of the family with the aim of issuing a report recommending to the judge what type of custody is best for the children and, in the case of a single parent, in favour of which of the parents.

- Exploration of the minor: from the age of 12, minors have the right to be heard in those processes that affect them. This does not mean that they decide and that the judge is obliged to do what the child decides, but their statement carries a lot of weight in the judicial decision.

The judge also takes into account other issues such as the parents' working hours, dedication to the children, personal and financial stability, supportive family environment, etc.

Rights and obligations of the non-custodial parent

A non-custodial parent is defined as a parent who does not have custody of the child, although it is true that, in the vast majority of cases, shared parental authority is maintained between both parents.

Parental authority is the set of rights, powers and duties that parents have over their minor children, regardless of whether they are married to each other or not, as it does not depend on the marital relationship, but is based on parental-child relationships.

These are the main rights and obligations of the non-custodial parent:

A. Rights

Visits, here we emphasise that this is a right-duty, because although this parent has the right to relate to his or her children, it is also true that the children have the right to relate to him or her, hence it is not up to the non-custodial parent to decide whether or not to comply with these visits, but they are obligatory. The parents can agree on the visiting arrangements and if they do not agree, the judge will decide for the benefit of the child.

B. Obligations 

The main obligation is to provide maintenance, so that the judgment of a separation/divorce process has to establish the monthly amount to be paid for this concept in favour of the minor children or adult children if they are not financially independent. This maintenance must be updated annually in accordance with the CPI published by the National Institute of Statistics.

The legal concept of maintenance includes everything necessary for the maintenance, housing, clothing and medical care, as well as the education of the child when he or she is a minor and thereafter when he or she has not completed his or her education for reasons for which he or she is not responsible (Article 142 of the Civil Code).

In addition to the payment of maintenance, the non-custodial parent must contribute to the payment of extraordinary expenses related to the children. The usual formula is that these expenses are shared equally between the parents, but there is nothing to prevent a different percentage share being established when there is a difference between the incomes of one parent and the other, so that the parent with the higher income pays more.

Apart from the possibility of enjoying the company of the children (weekends, holidays, etc. according to the division that corresponds to the other parent), a communications regime is also considered, with the aim that the children can communicate with the parent they are not with at the time by different means (telephone, whatsapp...).

Is it possible to change to shared custody at a later date? 

Yes, it must be taken into account that the parents may have agreed on sole custody in favour of one of them or the judge may have decided so in cases of contentious proceedings based on the circumstances at the time the decision was taken, but the passage of time causes the circumstances to change.

When this happens, a modification of measures procedure has to be carried out and again this can be done by mutual agreement, i.e. by a consensual decision between the parents, who consider that the best thing for their children is to move to a system of shared custody.

Or through a contentious procedure, initiated by one of the parents who asks for a change to shared custody on the grounds that this is the most advisable for the children, taking into account the new circumstances. 

If there is no agreement between the parents, it must be the judge who decides on the change of custody to ensure the welfare of the children and to check whether the new circumstances are suitable for changing the type of custody. 

If you want to ask for a modification of measures, consult us.