Divorce and Children

Spain is taking on a “record” nothing proudest of marriage breakdown, reaching nearly 90,000 divorces per year, according to some statistics. It is a very worrying for professionals dedicated to the issues of matrimonial and family law figure. This high number of divorces, few people are achieved by mutual agreement and that achieved a contentious issue.

The points of discord between spouses who want to divorce refer to the economic issue and the issue of children. Everyone wants to get more economic benefit and pecuniary claim more rights than strictly corresponds to them and, unfortunately, this same desire to put it out quite a few occasions -in the same level of the children. It is sad to have to explain sometimes a legal divorce process that has nothing to do economic “interest” with the “interest” of the children. They are in a very different level, though this seems a “truism”, it sometimes happens that some (a) member of the couple, or both-are not so clear.

In the distribution of economic goods each divorcing spouses remains with the party “rightful” which is his alone and does not have to share it with the other or the other. But not so with the children: the children are two and a divorce the children do not have to stay without father or mother, but are still having them both.

How convenient would be that a couple wants to divorce and is in normal conditions to take care of their children and educate them properly, guard and custody of their children was shared. Spanish judges are now increasingly likely to declare shared custody in the best interest and benefit of minor children, even sometimes they choose, although parents had not specifically requested. But it is still very common for judges and prosecutors agree to grant the custody of minor children to the mother.

When the former spouses are well-matched and have cordial and polite relations between them, not so much the custody of minor children is the den mother or is a shared custody, since both parents want the best for their children and each well will fulfill his role as father or mother.

The problem is when we have a divorced couple in which both parties or one of them does not have a healthy psychological or mental balance and observed a visceral hatred for his “ex” and intended to convey those bad feelings of resentment and hatred of their children, who “manipulated” to take revenge on his former partner, getting the children do not want to see his father or his mother. This is what is called Parental Alienation Syndrome whose direct and innocent victims are the children.

Usually, but not always, in these pathological cases of complicated divorce, is the mother who goes to the guardianship of minor children and suffer serious psychological or personality disorders in this behavior affects mostly parental alienation, “using” their minor children for instrumentalizing as whip to their former partners. This may well sound quite that hard, but the reality is not so, which is harder and infrecuente- sad, if possible. We all know of situations increased children victims of Parental Alienation Syndrome through jurisprudence, news, television, etc. that make us feel a deep sorrow for these children (as) manipulated such that are affected deeply into his personality, their emotional stability and their mental health with serious consequences for the rest of their lives, as these children fall serious conflicts of loyalty having to be in favor of one parent and against the other. Nobody has to force them to do so, much less a parent. This is a tremendous form of psychological abuse.

There are so serious situations that seem straight out of a “soap opera”, where the parent and “ex” on the other (a), also a victim of this alienation, not only suffers to see their children psychologically manipulated against the another (a) but also, it is falsely accused by his former partner as a sex offender for their children or try to physically harm his former partner. A complaint of sexual abuse of a child automatically carries the precautionary suspension of visitation for the father or mother for a long period of time and prevents can be granted joint custody. Although it is a false report, the younger son believes in a panic to see his father or his mother falsely accused. Children are the hardest hit by these incredible situations.

Psychologists experts in the field say that in cases of severe alienation, the person alienating behavior is based on failure to obey court decisions not to be aware of the damage caused to his own son, to recruit friends and environment family against the alienated part and raise a legal battle with false allegations. Psychologists argue that the only proven therapy is to separate the child from the alienating parent. After the change of custody and the time you can go normalizing the situation of the child with the alienating parent, but must be done with a “limited and supervised access to the child not reschedule.” The same psychologists warn of the risk that parents who receive custody become turn into alienating “after so many years of rage.”

The solution for these difficult cases would then be the shared custody? It seems an appropriate solution, but it really is not because the grant it would involve a long judicial process: there are no allegations of abuse or mistreatment, the judge understands that there is agreement between the parents, the prosecutor gives a favorable opinion, a positive report of psychosocial services, etc. Does joint custody should only be considered in cases where both parents agree? While preserving the interests of the minor child who is ultimately to protect the legal, you can answer this question correctly.

In any case, before agreeing to the regime of custody, the court shall obtain the report of the prosecution and hearing children who have sufficient judgment when it deems necessary or upon request of the Prosecutor, the parties or members Judicial Technical Team or the minor; the judge must also evaluate the arguments of the parties given at the hearing, the evidence produced it and the relationship that parents keep each other and with their children for suitability with the regime of shared custody.

With shared custody, the child remains with his father and mother alternately, and both will have to serve and assist you. After the divorce of the spouses, the time spent with either parent will be distributed in a close to fifty percent share. In practice, children can remain in the family home and both parents maintain separate households, coming at different times the parent and, as established, common to take over the childcare home. This can be very convenient for the child, but requires a lot of understanding, maturity, flexibility and good relationship between the father and the mother. It could also require as a matter of prudence and understanding a certain resignation to hold a new family life with another, because it would be inappropriate if either parent starts a new relationship, the third party also go to the family home when the parent have to take care of the children, as this could be a source of conflict for the other parent or the children and alter the resolution adopted.

This measure would prevent the child was continually changing family home, which could create a sense of instability. But as we have said previously, parents would be quite emotional and affective maturity, very good and cordial relationships between them, respect and appreciation for the other; these qualities which obviously does not occur in a couple or partner incurring the Parental Alienation Syndrome, already affected psychologically and emotionally by frustration and hatred for his former partner.

Obviously the formula described above certainly requires a good level of income to sustain the family home where the children are, besides the address where they live each of the former spouses.

Another more usual formula when a regime of joint custody is given is one in which both parents maintain separate households and is the least that you move constantly, either every three days, every week or every month. The downside would be that the child or minor children have to continually change of address. The father and mother have to live by for the children could go to school and keep them after school activities and have to interact father and mother frequently to exchange views and unify standards of behavior towards children, which would mean much more treatment and relationship between the “ex” of what would be normal if custody is not shared.

This form of joint custody is a system of “alternate” that divides the children in times and different rooms of divorced parents and can lead to interesting cases, for example, a recent judgment of a Court of Barcelona in which it was decided that it was not for alternate weeks joint custody of the children, but for days, home of the father or the mother, alternating weekends: Monday and Tuesday with the mother, Wednesday and Thursday with father (counting the nights), Christmas holidays, Easter, summer equally between both parents. And children can cope with so many “alternans”?

What is clear is that the separation, nullity and divorce do not exempt parents from their responsibilities towards their children. Is not the same the “guardianship” that “parental authority”. Typically custody is granted to both and only deprives her father or mother in exceptional cases such as assault, failure to provide food, if either spouse has some kind of addiction, mental illness or a type of disordered life, etc. There shall be no shared custody when either parent is the subject of criminal proceedings initiated by injury to life, physical integrity, freedom, moral integrity or sexual freedom and integrity of the other spouse or children who live both or any other crime family. Nor will proceed when the judge gives notice of the arguments of the parties and the evidence presented, the existence of real indication of domestic violence.

The courts agree on the exercise of shared custody of children when parents request it on the proposed regulatory agreement or when both reach this agreement during the procedure. The judge, by agreeing joint and base its decision after saves, take the precautions necessary to ensure the effective implementation of the regime established guard, trying not to separate siblings or other important family members such as grandparents, for example. (You can read in this blog an article on “The grandparents also have the right to see their grandchildren”).

Article 92 of the Spanish Civil Code refers in its 9 numerals, to shared custody, as an innovation introduced by Law 15/2005, of July 8, with respect to separation and divorce.

It is clear that the regime of shared custody is not the antidote for cases of Parental Alienation Syndrome because both cases involve very different family realities regarding the emotional and affective stability to education and mental health of ex-spouses.

Leave a Reply

Your email address will not be published. Required fields are marked *