LA CUSTODIA COMPARTIDA COMO ALTERNATIVA LEGAL.

Abstract

Shared custody is one of the cornerstones of the reform of civil law in matters of marriage enacted through Act 15/ 2005, and it is also one of the issues that has roused the greatest debate in public opinion. Legislators seized the opportunity for what we might term a generally advisable rewording of article 92 of the Civil Code to attune legislation more closely to today's real society. The child's interest is envisaged as the guiding principle in these matters, and the autonomy of spouses' wishes is reinforced. The spouses, in a new legislative feature, are acknowledged as being able to choose to share custody, either when they propose the agreement regulating their divorce or when they reach such an agreement in the course of the proceedings. Prior to this, shared custody was not expressly envisaged, but it was not prohibited, either. In fact, the most recent trend in case law shows itself to be timidly in favour of awarding shared custody or scheduling lengthy periods of shared living. At present there are no legal obstacles to shared custody; any rejection of shared custody will stem from the use of extra-legal criteria. It will be the judge who ultimately weighs the advisability of shared custody on the basis of the higher interest of the child, which will serve as the general guide in decision making. The judge may be prevented from agreeing to the measure by a series of weighted circumstances, part of the special precautions that surround shared custody. Also, even when none of the weighted circumstances are attendant, there is a series of explicitly defined additional precautions to be factored in by the judge before a decision is reached. The newly configured hearing of the child is one important precaution of this type. One of the issues that sparked the most debate was the possibility of allowing shared custody at the unilateral request of one of the parents against the opposition of the other. In the end, in exceptional cases, the judge, at the request of one of the parties and with a favourable report from the public prosecutor, may rule that custody is to be shared on the grounds that only through shared custody can the greater interest of the child be adequately protected. In any case, consensus is hard to reach on this issue, especially as the model is still implicitly based on an exclusive custody model, since the other measures intimately related with custody (child support, housing) have not been reformed. The alternative conflict-resolution mechanism of mediation will be what can facilitate the reaching of shared-custody agreements.