Custody is the regime that establishes the coexistence and care of parents with their children when they separate.
When the parents are in conjugal or family coexistence, it is not necessary to establish any guardianship and custody regime. On the other hand, when the parents initiate a process of separation or divorce and there are children in common, a regime must be established to know the period of time in which the children will live with each parent or if they will only have coexistence with one of the parents. And it is this decision for the establishment of the habitual coexistence of the children what is known as guardianship and custody.
This decision can be made by agreement between the parents or by the judicial authority.
Holding custody stipulates certain obligations towards the children gathered in the habitual coexistence of the parents with the children. For example, food or clothing.
The obligations that custody entails can be framed within the legal figure of parental authority. However, guardianship and custody is a different figure from parental authority.
Custody and parental authority
The main differences between these two figures are:
Persons subject to custody
The subject persons can be:
- Non-emancipated minors.
- Disabled during minority.
- Disabled during the age of majority, if you are single, you live in the company of parents and they can still exercise it.
Types of regimen
There are three ways to establish this regimen:
- Shared custody: This regime establishes that the coexistence of the child will be 50% with each parent. If the distribution is 6 months a year with each one or a week with each one, it will be something that the parents themselves establish or in case of disagreement the judge will decide. The judge will decide it always looking out for the best interests of the minor. In any case, the shared custody regime will not be established when:
- One of the parents is convicted or investigated in a criminal proceeding in which a crime against the integrity of the minor is tried or convicted.
- Some of the formulas that parents choose or are imposed by the judge are:
- Single address: Minors do not change their address and those who change to comply with the established periods of time are the parents themselves.
- Different addresses: Each parent has their address and it will be the minor who moves to be able to share the established time with each one.
- Same address with parents: This case is very unusual, but the parents can divorce or separate and continue to live in the same address where they share joint custody with the children.
- Sole or single parent custody: This regime establishes the habitual coexistence of the child with a single parent for 100% of their time. However, when this regime is established either by agreement of the parents or by the judge, the children will have established a visitation regime for the parent with whom they do not live.
- Other custody: No parent takes care of the children and a third person takes charge, such as grandparents.
It should be noted that what has been explained has taken the Spanish case as a reference, and may have its peculiarities in other countries.