Audacia Abogados

Who wins custody of the children when the parents are not married?

How is custody determined when the parents are not married?

Civil Law
Who wins custody of the children when the parents are not married?

What aspects does the judge value to assign shared custody?

The judge and the Public Prosecutor will consider aspects such as the age of the children, the availability of the parents to exercise such custody or the distance between homes. Below, we explain it in more detail.

Aspects that are taken into account to grant custody of children to unmarried parents

In order to establish the custody of the children, the judge will evaluate the following details:

- Children under three years of age.

The most usual when the child is less than three years old, is that the custody is given to the mother, because the dependence on her, especially if she is breastfeeding, is high.

- Children over three years of age

From the age of three onwards, joint custody is usually given, taking into account that the parents' homes are relatively close and always trying to favor equal contact with both parents.

- Violence or neglect of responsibilities

It is also assessed whether there has been gender violence or violence against children, if there has been abandonment or neglect of their responsibilities as parents to decide custody in favor of only one parent.

- Single-parent custody

Single-parent custody, i.e., for only one of the parents, results in setting a visitation regime in favor of the non-custodial parent that can be more or less extensive depending on the particularities of each case. In very specific situations or when there have been repeated breaches of such visits, they can be abolished by the judge.

Visitation regime

The most common visiting regime is alternate weekends and half of the Christmas, Easter and summer vacations. After this, it can be extended by one or two more weekdays.

There are situations in which custody is given to one of the parents and such an extensive visitation regime is imposed on the other, that in practice the time the child spends with both parents is equal.

In conclusion, not being married is not an element that dictates which custody has to be fixed, the personal situation of the parents and the benefit of the minor have more influence when deciding which custody is exercised.

Civil Law

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