Shared Custody in Spain: Requirements, How to Apply, and Case Law

Shared custody has become the preferred guardianship regime in Spanish judicial practice. What was exceptional barely a decade ago is now the option predominantly adopted by courts, provided certain conditions are met. This article analyzes the legal framework, the requirements that must be fulfilled, key Supreme Court case law, and practical aspects for successfully applying for shared custody.

Legal Framework for Shared Custody

Article 92 of the Civil Code

The central provisión is Article 92 of the Civil Code, modified by Law 15/2005, which establishes in paragraphs 5 to 8 the rules for shared custody:

Paragraph 5: The Judge may grant shared custody when both parents request it in the regulatory agreement proposal or when both reach this agreement during proceedings.
Paragraph 8: Exceptionally, even without agreement of both parents, the Judge may establish joint custody, grounding it in the fact that only in this way is the best interest of the child adequately protected.
Paragraph 7: Joint custody shall not apply when either parent is involved in criminal proceedings for offenses against the life, physical integrity, freedom, moral integrity, or sexual freedom of the other spouse or children, nor when the Judge detects substantiated signs of domestic violence.

Law 8/2021, of June 2

Law 8/2021, reforming civil and procedural legislation to support persons with disabilities in exercising their legal capacity, introduced relevant modifications in the protection of minors and determination of their best interests. While it did not directly modify Art. 92 CC, it reinforced the principle of the best interest of the child as the guiding criterion for every judicial decisión affecting minors, aligning with Organic Law 8/2015 on the reform of the child protection system.

Regional Legislation

Several autonomous communities have legislated more progressively:

Aragon (Code of Aragonese Regional Law, art. 80): shared custody is the preferred option, and the judge must expressly justify not applying it.
Catalonia (Law 25/2010, Book II of the Catalan Civil Code, art. 233-10): establishes a mandatory parenting plan and favors shared custody.
Valencia (Law 5/2011, repealed in 2016 but whose doctrine continues to influence): established shared custody as the preferred regime.
Basque Country (Law 7/2015): also contemplates preference for shared custody.
Navarra (Regional Law 71/2019): shared custody is the preferred regime.

Supreme Court Criteria

The Supreme Court has consolidated very clear case law on shared custody. The most relevant judgments are:

STS 257/2013, April 29

A landmark judgment establishing that shared custody is not exceptional but should be considered the most normal and desirable option. The Court stated that "the interpretation of Articles 92.5, 6 and 7 of the Civil Code must be founded on the interest of the minors who will be affected by the measure to be taken, which will be agreed when any of the criteria reiterated by this Chamber concur."

STS 758/2013, November 25

Consolidated the criteria the judge must evaluate when granting shared custody:

The parents' prior practice in caring for their children.
Their personal aptitudes.
The wishes expressed by competent minors.
The number of children.
The parents' fulfillment of their duties toward the children.
Mutual respect in their personal relations.
The results of legally required reports (Public Prosecutor's report, psychosocial teams).
Proximity of the parents' homes.
The parents' schedules and activities.

STS 55/2016, February 11

Noted that shared custody does not require perfect agreement between the parents, but rather that the system be functional. Disagreements typical of any breakup are not grounds for denial, unless they reach a level that prevents the minimum necessary cooperation.

STS 564/2017, October 17

Established that shared custody does not require an equal time split (50/50) but allows flexible arrangements adapted to each family's circumstances.

STS 630/2018, November 13

Indicated that the opinion of minor children (judicial exploration) must be weighed together with other factors but does not constitute a determinative criterion by itself.

The Parenting Plan

The parenting plan is a key document ( mandatory in Catalonia (art. 233-9 CCC) and highly recommended elsewhere in Spain ) that details how children's lives will be organized after separation. It should include:

Child Support in Shared Custody

A common misconception is that shared custody eliminates child support obligations. This is not the case. The Supreme Court (STS 55/2016) has indicated that shared custody does not exclude setting child support payments by one parent when there is a disproportion between both parents' incomes.

Setting Criteria

Income proportion: if one parent earns significantly more, they will contribute more.
Fixed child expenses: establishing which expenses each parent covers directly and which are paid from a joint account.
Common expense account: frequent formula where each parent contributes proportionally to their income.
Extraordinary expenses: special education, uncovered medical treatments, high-level sports activities, usually split 50/50 or proportionally to income.

Public Prosecutor's Report

Article 92.6 CC requires that before granting shared custody, the Judge obtains a favorable report from the Public Prosecutor. However, the Constitutional Court (STC 185/2012, October 17) declared the word "favorable" in Article 92.8 CC unconstitutional and void, meaning the Prosecutor's report is mandatory (must be requested) but not binding (the judge may grant shared custody even if the prosecutor advises against it).

How to Apply for Shared Custody Step by Step

1. Gather Documentation

Evidence of involvement in daily childcare (school drop-offs and pick-ups, medical appointments, extracurricular activities).
School reports (report cards, communications with teachers).
Financial documentation (payslips, income tax returns, child expenses).
Work schedule compatible with custody.
Proof of adequate housing with a dedicated bedroom for the children.

2. Develop the Parenting Plan

Design a detailed, realistic proposal for how shared custody will be organized, including all points mentioned above.

3. Private Expert Report (Recommended)

While not mandatory, a private psychological expert report evaluating parenting competencies and recommending shared custody can be highly relevant evidence.

4. Request Judicial Psychosocial Assessment

In judicial proceedings, request the psychosocial team report attached to the court. These reports are very positively valued by judges.

5. Judicial Hearing of Minors

If children are over 12 (or younger if sufficiently mature), the judge may hear them. Prepare minors emotionally (without coaching).

Custody Changes: From Sole to Shared

It is common that, after a divorce with sole custody, one parent requests modification to shared custody under Article 775 LEC. This requires demonstrating a substantial change in circumstances, such as:

Greater age and maturity of the children
Change in employment situation or schedule availability
Change of residence favoring proximity
Repeated breach of the visitation regime by the custodial parent
Evolution of case law toward shared custody as the preferred regime (Supreme Court case law itself may constitute a change in circumstances)

How Lexiel Helps in Shared Custody Cases

Lexiel is designed to assist family lawyers in preparing custody cases:

Automated case law analysis: searches relevant Supreme Court and Provincial Court judgments on shared custody, filtering by criteria similar to the specific case (children's ages, geographic situation, work circumstances).
Parenting plan generation: from case data, generates a complete parenting plan proposal adapted to applicable legislation (national or regional).
Indicative child support calculation: based on CGPJ guideline tables, declared income, and documented expenses.
Drafting petitions and briefs: generates shared custody petitions (as claimant) or responses (as respondent) with verified legal reasoning.
Opposing View analysis: analyzes the opposing party's strategy and anticipates arguments, enabling preparation of solid responses.

Conclusion

Shared custody is today the natural regime in Spanish family law. Its granting depends on demonstrating that it is the option that best protects the children's interests, providing a realistic parenting plan and documentation that proves the capacity and involvement of both parents. Good case preparation is key to success.

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Shared Custody in Spain: Requirements, How to Apply, and Case Law