Guardianship and custody of minor children. Guide 2022

Guardianship and custody of minor children. Guide 2022
Published on: 12 May 2024

Table of contents

The guardianship and custody of minors is a legal concept that revolves around the care, assistance and cohabitation with them. It is regulated in the Civil Code and is of particular interest in cases of separation, divorce or marriage annulment between parents. Therefore, here we would like to offer you an up-to-date guide with everything you need to know about it.

What does child custody mean?

First of all, we will tell you where the guardianship and custody of minor children is regulated. This concept is typified in article 92 of the Civil Code.
Specifically, guardianship and custody is a legal concept that refers to the cohabitation, care and assistance of minor children. That is to say, the right of the minor to have a home and to receive the attention they need to grow up physically and psychologically healthy and the obligation of their parents to provide them with all these elements.

What is the difference between guardianship and custody and parental authority?

It is common for both concepts to be used as synonyms in everyday life. However, guardianship and custody and parental authority are different legal concepts.

Guardianship and custody, as mentioned above, focuses on the habitual cohabitation with the minor children. Therefore, it covers their food, clothing, home, schooling, health care and a long etcetera.

In contrast, parental authority refers to the administration of the minor's property and general representation.

The difference between the two concepts is particularly noticeable in cases of separation or divorce. In such cases, the custody of the child may belong exclusively to one of the parents. However, parental authority remains with both parents unless a judge deprives the parent of parental authority by a final judgment.

When does custody of children end?

This question is closely linked to the previous point. There are many parents who believe that custody of the children ends at the age of 18, i.e. when they reach the age of majority. This, in case you have established a single-parent custody regime (more on this later), will allow you to stop paying child maintenance.

However, they are wrong. What ceases to exist when the child reaches the age of majority, i.e. when he or she reaches the age of 18, is the parental authority over the child. We are talking about the right to administer his or her property and to represent him or her in general.
In contrast, custody of the child does not cease until the child becomes financially independent. In most cases, this does not actually happen when the child reaches the age of 18, but much later. Until that time, therefore, the non-custodial parent must continue to pay child maintenance.

Who has custody of a child? The different types of custody

It is clear that if the couple with a minor child remains married, in a common-law relationship or simply living under the same roof, both partners retain custody under the same conditions. However, upon separation or divorce (or custody proceedings if they are not married), it is necessary to determine what is to be done with the child. These are the two main options:

  • Single-parent custody and guardianship. This is the one in which only one parent is in charge of the custody and guardianship of the minor children. Until not so long ago, it was the most widespread formula in our country after a separation or divorce. It can also occur after the death of one of the parents.
  • Shared custody and guardianship. This is an increasingly popular and in-demand option. In fact, the Supreme Court recommends its application by default after separation and divorce. In this case, although the couple do not live together, both parents maintain custody of the minor children, with the rights and obligations that this entails.

It is true that there are other types of custody and guardianship. This is the case, for example, of split or distributed custody, as well as custody by a third party if, for example, the child has no family member who is able or willing to take care of him or her in the absence of his or her parents. However, these cases are very rare.

Who is in charge of deciding which type of custody is to be applied?

It is true that both parents, during the process of drafting the separation or divorce agreement, can agree on the terms and conditions under which the custody of the minor children they have in common will be applied. In other words, they are in a position to determine whether the mother or father will have sole custody or whether they will share custody. However, this agreement must be signed by a judge, who has the final say. It is important to emphasise that the judge will always seek the maximum protection of the rights of the children. Especially if they are under 12 years of age and it is neither possible nor advisable to take a statement from them.

By this, we mean that the judge can modify the regulatory agreement and establish another custody regime if he or she deems it appropriate. Provided, of course, that there is evidence to support his or her decision.
Let's take an example. It is possible that a couple who want to divorce may agree that they wish to maintain a shared custody regime. This is reflected in the agreement they submit to the judge during the proceedings.
However, upon review, the magistrate realises that the father is moving to another city for work and that performing his duties will be detrimental to the welfare of the child. In that case, he or she is likely to establish a single-parent regime in his or her favour or in favour of the mother, as the case may be. The non-custodial parent will be assigned an access regime and will have to pay maintenance for the children, without prejudice to the possibility of a compensatory one for the ex-partner.
Obviously, if circumstances change in the future, it is possible to modify the divorce or separation agreement and establish a system of shared custody and guardianship.

Custody disputes, always best in the hands of a professional

In short, the custody and guardianship of a minor child is a fairly simple concept to understand but one which, on many occasions, gives rise to strong conflicts between couples who want to separate or divorce. For this reason, both in order to reach an agreement that avoids litigation and to safeguard the rights and interests of the child, it is best to put the case in the hands of a lawyer specialised in Family Law. He or she will take charge of managing the entire legal procedure with the maximum guarantees.

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