When going through a divorce process involving young children, that is, minors, the fear of mothers losing custody is universal, especially if the relationship with the spouse was abusive. It is understandable that mothers do not want to lose daily contact with their children and seek to care for, protect, and provide them with the best life possible. Therefore, obtaining full custody for a mother during a divorce process can be extremely stressful and complex.
However, that is where legal services and firms like Blegal come in, to help you with these types of situations. If you want to know in which situations full custody can be obtained, we will explain it step by step today.
What is full custody?
Before continuing on how to obtain it, it is necessary to understand what it consists of. In Spain, it is a regime where one of the parents (the custodial parent) assumes the primary responsibility for the daily care and upbringing of the minor child of the couple or marriage, while the other parent (the non-custodial parent) only has visitation and communication rights. This regime is generally established in cases of separation or divorce.
These cases do not mean at any time that the purpose of full custody is to ‘take the child away’ from anyone. Children are not property, and it is not the lawyer’s mission to seek this type of custody to harm the other parent. The goal is to ensure the best possible well-being for the child, and thus, resentments between parents should be set aside to reach the most amicable solution for the child. Therefore, in addition to the Civil Code, other laws also include the regulatory agreement, which sets out the terms and conditions of the effects derived from the marital breakdown.
It is worth noting that in Spain, shared custody arrangements have gained prominence in separation and divorce proceedings in recent years. In fact, this modality was adopted in 45.5% of cases in 2022, although judges, in their duty to protect the interests of the children, often lean towards sole or full custody.
In these cases, the figure of the custodial parent is established, with whom the minor lives continuously. However, for this to be fulfilled, certain conditions must be met, which we will discuss below.
How can a mother obtain full custody?
For a single parent, in this case, the mother, to seek full custody, a series of requirements must be met:
Prior care and dedication before the breakup
If during the cohabitation, the mother was the one who took care of the children most of the time, family courts usually aim to maintain this same situation after the breakup. In this way, they seek to preserve the child’s daily life as much as possible, as if there were no divorce. It should be noted that the breakup itself is already a significant change in their lives, so judges will always seek to change the child’s habits as little as possible.
Therefore, those parents with a more passive role in caring for their children usually face more difficulties in obtaining custody. This fact in itself does not mean that post-divorce care time cannot be shared between both parents, but it does tip the balance in favor of the parent who has been caring for the children up to that point.
Age
Age is a fundamental factor when assessing which parent should get full custody. In the case of breastfeeding infants under 2 years old, custody is usually awarded to the mother due to the need for breastfeeding. From the age of 3, shared custody becomes more feasible since children are not as dependent on the mother for nutrition and can express their wishes and preferences.
Time availability
The mother’s flexibility in caring for the children when they are not in school is one of the most important requirements when considering sole custody. If she works too many hours and cannot directly care for the children, obtaining exclusive custody may be more difficult. The same applies in reverse; if the other parent has a work schedule incompatible with shared custody, it will be difficult for them to be granted custody.
The child’s opinion
The interest and opinion of the child are taken into account in family proceedings. Judges will always seek the option that benefits the child the most, whether it is shared or sole custody. Therefore, evidence should be presented to help evaluate which option is more favorable. To minimize trauma, it is often recommended that parents reach a prior agreement themselves since they know their child best and should be mature enough to understand what is best for them without judicial intervention.
Proximity of the residence
It is essential that the residence of the parent seeking full custody is close to the child’s usual surroundings, including their school and/or social environment. If the child is already enrolled in school, moving without mutual agreement becomes more complicated and can negatively impact the custody decision.
The child’s preference
By law, from the age of 7, the child’s psychosocial reports are taken into account, and from the age of 12, the child’s direct statement to the judge and prosecutor is considered. It is essential to ensure that children have the space and security to express themselves freely and share their wishes without pressure. We must not forget that the judge will consider their preference when deciding on custody.
Relationship between the parents
A contentious relationship between the parents usually results in full custody for one of them. On the other hand, a cooperative and cordial attitude between them often leads to shared custody. If one party hinders the child’s relationship with the other, it is most likely that the judge will grant custody to the parent who ensures better cohabitation.
If allegations and evidence are presented, they should aim to allow the judge to consider all relevant facts in making the final decision. These can reveal behaviors detrimental to the child’s well-being, such as substance abuse by one of the parents. However, this factor will only influence the judicial resolution if it is shown to affect the parent’s ability to meet their child’s needs.
Cases involving violence are treated entirely differently. The existence of a judicial process for domestic or gender violence will prevent the accused parent from obtaining custody of the child.
External support
Support from family members (grandparents, uncles) is crucial for the child’s development. A good relationship with close relatives provides more love, support, and a smoother transition for the child in their changing life. If one of the parents lives far from their relatives, this factor can become a disadvantage in obtaining custody.
When would full custody be granted to the mother?
If the judge handling the case believes that, always prioritizing the child’s best interests, one of the parents is not capable of meeting their needs, they will grant care and custody exclusively to the other parent. The decision does not consider whether the parent receiving full custody is the mother or the father. The only situation where custody will always be awarded to the mother is if the child is in the breastfeeding stage.
In this case, during the child’s first 2 years of life (the period recommended by the World Health Organization for breastfeeding) and in some cases up to age 3, the judge will determine that the child will live full-time with their mother.
Visitation in cases of maternal full custody
When exclusive custody is awarded to the mother, a visitation and stay schedule with the father is established. The usual arrangement consists of alternate weekends, starting from Friday after school until Sunday at 8 p.m. In some cases, it may be extended to Monday morning, depending on the children’s age and school logistics.
Depending on the level of conflict between the parents, it may be more beneficial to schedule weekend returns for Monday at school to reduce the chances of disputes in front of the child. The less time they spend together initially, the less likely personal issues will become reasons for arguments.
In addition to weekends, a midweek visit is usually arranged, typically on Wednesdays, during the weeks when the father has the weekend with the child. Two additional visits, on Tuesdays and Thursdays, from school dismissal until 8 p.m., are included in the weeks when the father does not have weekend custody. School holidays are usually divided equally between both parents unless there is a special case (such as domestic or gender violence).
If you are going through a divorce and are concerned about shared custody or full custody, you can count on the legal services of Blegal. We study each family’s situation closely to ensure any situation or conflict (divorces, child support negotiations, guardianship, custody…) is resolved in the best possible way. If you have a specific question or want us to start working together, just get in touch with our team. Shall we talk?
