Shared custody in Spain 2026: how it is decided and what rights each parent has

Shared vs. sole custody: key difference

Custody (guarda y custodia) determines with whom the child habitually lives and who makes day-to-day care decisions. It differs from parental authority (patria potestad); the bundle of rights and duties towards the child; which both parents retain unless judicially removed.

• Sole custody: the child lives mainly with one parent; the other has visitation rights.
• Shared custody: the child alternates residence between both parents in equal or similar periods.

Legal framework: Art. 92 Civil Code

Since the 2005 reform, Art. 92 Civil Code allows shared custody when it benefits the child, either by mutual agreement (approved by the judge) or at one parent's request alone. Judges may never grant shared custody where domestic or gender-based violence is found (Art. 92.7 CC).

Regional law: Aragon (Art. 76 CDFA) and the Basque Country treat shared custody as the preferred default.

Supreme Court criteria for shared custody

STS 29/04/2013 (Full Chamber) established that shared custody is the normal and desirable system unless harmful to the child. Key factors:

1. Prior parenting practice of each parent.
2. Personal aptitudes of each parent.
3. Preferences of children with sufficient judgment (generally from age 12).
4. Number of children.
5. Compliance with duties and mutual respect.
6. Reports from social services, psychosocial team and Public Prosecutor.
7. Distance between homes and each parent's work schedule.

One parent's mere opposition is not sufficient to deny shared custody (STS 25/11/2013).

Child maintenance in shared custody

Shared custody does not automatically eliminate child maintenance. The court weighs each parent's income, the child's costs and actual cohabitation time. If incomes are similar and time is balanced, maintenance may be zero or nominal. Where there is a relevant income gap, maintenance is set at the higher-earning parent's expense (STS 16/02/2015).

Lexiel helps family lawyers find updated Supreme Court and Provincial Court case law on shared custody, draft parenting plans and structure demand briefs or replies.