Shared custody in Spain: Supreme Court criteria 2025
The Spanish Supreme Court has consolidated shared custody as the preferred arrangement when beneficial to the child. We analyse the criteria from STS 257/2013 and subsequent rulings through 2025: distance between homes, parental communication capacity and child's wishes.
The Supreme Court's jurisprudential shift
Until 2013, shared custody in Spain was an exception requiring both parents' agreement or exceptional circumstances. STS 257/2013 of 29 April (Civil Chamber, Full Court) marked a turning point: the TS declared shared custody to be the normal, not exceptional, arrangement, whenever beneficial for the child, regardless of parental agreement.
Criteria for granting or denying shared custody
The TS has systematised criteria in a multi-factor test:
Favourable factors: parental communication capacity, proximity of homes, similar availability, prior relationship with both parents, child's wishes (from age 12).
Unfavourable factors: gender-based or domestic violence (Art. 92.7 CC), negative Prosecutor's report, well-founded opposition from a mature child, extreme conflict.
Recent case law (2024-2025)
- STS 111/2024: confirms shared custody despite mother's opposition, finding minimum communication capacity and proven benefit to the child.
- STS 438/2024: denies shared custody due to distance between homes (200 km) and already-stabilised schooling.
- STS 22/2025: introduces nuance on psychological violence as an exclusión ground even without a formal protection order.
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