What types of custody are there?

The separation or divorce of a couple is a difficult process for both parties, involving many emotions. This situation is more difficult when the couple has children in charge, as they do not understand what is happening, so the process can be quite traumatic for them. Even so, these situations cannot be avoided, but what can be done is to take into consideration the opinion of the children in these cases, so that they are as unharmed as possible.

In this article we will explain the different types of custody that exist: single-parent, shared, split and third party custody. For each of them, in addition to a definition, we will give you an example of the type of custody to improve your understanding. We will also describe the procedure to establish the type of custody and the rights that married and unmarried people have in custody matters.

Types of custody.

In Spain there are the following types:

● Single-parent or sole custody.

In this type only one of the parents has custody of the children, so he/she will be the one in charge of the daily care of the children. This parent is called the custodial parent, and is usually the one who stays in the family home and who will receive child support from the other parent.

In this case, the non-custodial parent has the right to communicate with the children according to the availability of the children, to visit them for a few hours or several evenings a week, to have the children stay overnight for a certain period of time (such as weekends or holidays) and to receive information about the children's health and educational situations.

An example of single-parent or sole custody could be the following: ‘Maria has sole custody of her children, Juan, 7 years old and Lucia, 10 years old. Miguel visits his children twice a week, in the afternoon, makes phone calls with them on the afternoons he does not visit them and they stay over with him every other weekend during school time and, during the summer holidays, every 15 days a month’.

● Joint custody.

In this case, both parents have custody on equal terms: they share expenses related to the children in common, they share equally the time to spend with them, they share taking their children to extracurricular activities, to the doctor or to school, etc.

For this type of custody to be possible, it is advisable for the parents to live in the same municipality, or close to each other. 

Normally, it is the child who changes home depending on whether he or she is with one parent or the other. However, in recent times some families have opted for the parents to move house when it is the other parent's turn to spend time with the children. This option is highly recommended, as in this way the children do not have to adapt to a new home or a new neighbourhood.

An example of joint custody could be the following: ‘Maria and Michael have joint custody of their two children, Juan (7 years old) and Lucia (10 years old). Every two weeks, the children live with a different parent, who is responsible for looking after them, although they can communicate with the other parent. On the weeks when it is Michael's turn to take the children to school, feed them, take them to extracurricular activities, etc., and the same goes for the weeks when it is Maria's turn’.

● Split or distributed custody.

This type of custody can occur when parents have several children, with some living with one parent and others with the other. However, this type of custody is not recommended, as separating siblings may cause some trauma to the children. Therefore, it is important to listen to the children in the custody decision process, prioritising their well-being.

An example of split or distributed custody could be the following: ‘Maria and Michael have two children, John aged 7 and Lucia aged 9. In the separation process a split custody is decided, so that Lucia goes to live with Maria and John with Michael. However, visits and phone calls with the other parent and sibling are ensured’.

Custody by a third party.

In this case custody is not for either parent, but for a third person or institution. This can be relatives who can take care of the children or childcare institutions. This type of custody usually occurs in situations of abuse, family abandonment or death of both parents.

An example of this type of custody is as follows: ‘Maria and Michael have two children, John aged 7 and Lucia aged 10. When it comes to deciding custody, it is decided that the children will be left in the care of their aunt Antonia, who lives alone and has a stable income to look after her nephews and nieces’.

Procedure.

In order to decide the type of custody, there has to be a situation of separation or divorce between the parents. The process will be different in case the parents decide by mutual agreement what kind of custody they want to have or leave this decision to the judge.

In the event that the parents decide by mutual agreement the type of custody they want to have, both before initiating the separation or divorce process and during the process, they will have to present a regulatory agreement to the judge, who will review it and approve it as long as the agreements reached are permitted by the legal system and the proposed custody is favourable for the children.

In the event that the parents leave it up to the judge what type of custody they have in relation to their children, the judge will have to: request a report from the Public Prosecutor's Office on the family situation, listen to the children old enough to know their interest in the process, assess the allegations of each of the parties and the evidence presented and, finally, assess the relationship that the parents have with each other and with their children.

In both cases, the best interests of the child are paramount, so they will be heard in any of the options and the judge will decide taking into account their opinion.

Custody rights in unmarried and married couples.

Unmarried and married couples have the same rights in matters relating to custody, i.e. it makes no difference whether couples are married or not to decide and obtain custody of their children. In both cases they will have to decide on the type of custody by mutual agreement or leave this decision to a judge. In either case, the opinion of the children will be heard.

In exceptional cases, such as when the father turns out not to be the father of a child he thought he had in common with his ex-partner, or when he did know about the child, but raised it as his own, the bond created between the person and the child will be taken into account. Although it may not be possible to give you full or shared custody, you will have the right to visit the child, contact the child, allow overnight stays, etc.

In conclusion, as can be seen, there are different types of custody. It is very important to know the opinion of the children in the process, as the best interests of the child are paramount regardless of whether the custody is chosen by mutual agreement or by a judge. At Audacia Abogados we can help you in the process of separation or divorce.