Shared custody in Málaga: the judges' criteria and how to prepare your claim

What the law says and what the Supreme Court says

Article 92 of the Civil Code allows the judge to award shared custody at the request of only one parent, provided it is in the child's best interests. Since Constitutional Court judgment 185/2012, a favourable report from the Public Prosecutor is no longer required for the judge to grant it.

The Supreme Court, from its judgment of 29 April 2013 and consistently since then, holds that shared custody is not an exceptional measure but the one which, in principle, best guarantees the children's right to a relationship with both parents. That does not mean it is always granted: it means that whoever opposes it has to explain why it is not in the child's interest.

The criteria the courts look at

Supreme Court doctrine and the practice of the Málaga family courts weigh, among others, these factors:

• The parents' previous practice in caring for the children: who took them to school, to the doctor, who handled the day to day. It need not have been 50/50, but both must have been involved.
• Each parent's capacity and availability: working hours, ability to balance work and care, family support.
• The relationship between the parents. They need not get on well, but they must be capable of a minimum of communication about the children. Very high conflict can be a reason to refuse it, although the Supreme Court has made clear that mere disagreement is not enough.
• How close the homes are and the stability of the child's school and social environment.
• The child's own view, who must be heard if they have sufficient maturity and in any case from the age of twelve.
• The children's age. With very young children the courts tend to be more cautious, although it is not an absolute obstacle.

Shared custody is never granted where one parent is subject to criminal proceedings for gender-based or domestic violence, or where the judge finds well-founded indications of it.

The parenting plan: the piece that helps most

What persuades a court is not asking for shared custody, but showing that it has been thought through. A specific parenting plan, although the Civil Code does not expressly require it, is now almost essential in practice. It should set out:

• The proposed alternation (alternate weeks, 2-2-3, fortnights) and why it fits the parents' and the school's timetables.
• How holidays, public holidays and special dates are shared.
• Who bears which cost and how ordinary and extraordinary expenses are contributed.
• How important decisions (school, health, activities) will be taken and how the parents will communicate.

The family home and child maintenance

Two effects worth understanding. With shared custody the family home is not automatically assigned to the custodial parent, because both are: the judge assigns it according to need and, usually, for a limited period. And child maintenance does not disappear: if there is an imbalance between the parents' incomes, one may have to contribute to the other.

How to prepare the claim

• Gather evidence of your involvement in the children's care: communications with the school, medical appointments, activities.
• Document your availability: employment contract and working hours, remote-working or flexibility options.
• Prepare the parenting plan in detail and realistically.
• If agreement is possible, consider a mutual-consent settlement: it is quicker, cheaper and usually works better than custody imposed by a judgment.