The first thing to distinguish is between custody and parental authority, something that is often confused. Parental authority is always assigned to both parents, since it is the set of rights and obligations that parents have for their children; that is, their protection, care and development.
Custody, however, refers to the habitual coexistence of the children with one of the parents, which can be shared between both, only with one of them or assigned to a third party, if the parents cannot take care of the child. How to decide who gets custody of the children after the parents' separation.
Recently child custody was something that used to be given to the mother in a traditional way, and few were the parents who requested joint custody, the latter being an exceptional measure. However, recent years show that parents are increasingly taking over the custody of children by requesting joint custody; Even so, in more than 80% of the cases the mothers are the ones who take care of the children, and only in 9% are shared custody given, and in 7% exclusively to the father, although as already We have said, this is a trend that is changing.
Currently the legislation is different in each country, even in each autonomous community; For example, in the case of Spain, in Madrid joint custody is an exceptional measure, and by default custody is granted to the mother, while in Barcelona it is the reverse.
When facing this delicate issue, it is always best to reach a prior agreement between the parties for the benefit of minors.
If this does not happen, the judge will decide which is the best option for the children.
On what is this assessment based?
1- The main thing is not to separate the brothers.
2- If the minors are under 7 years old, the custody of the children after the parents' separation,is usually given to the mother, as she is often the main attachment figure for younger childrenTherefore, the tendency is for children to continue, as far as possible, with their usual life with the person with the greatest attachment.
3- The relationship between parents. Shared custody will not proceed when one of the spouses has attempted against the life, physical integrity, liberty, moral integrity or sexual indemnity of the other spouse or their children, or when the judge notices the existence of domestic violence.
4- The desire of minors. Before granting joint custody, the judge must demand the report of the Public Prosecutor, who is in charge of preserve the rights of minors, and listen to minors over 12 years old.
5- The relationship that parents have with their children, and their availability with them.
6- The proximity of homesIf not, joint custody would be unfeasible; although it must be borne in mind that one of the spouses cannot unilaterally make the decision on the place of residence of the minor if it removes him from his usual environment, the choice of the school, or the religious orientation.
7- And of course, the effective fulfillment of their duties as parents.
The periodicity of custody will be established according to each specific case and always in the interest of the minor.
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