Deciding the children’s future after a separation is the most delicate part of any divorce. Where the parents cannot reach an agreement, a judge decides. But on what basis? At Diario de un Abogado we explain how custody proceedings work in Spain and the objective criteria the courts apply.
1. The overriding principle: the child’s wellbeing
Before the detail, it is essential to understand that the family court is not looking to «reward» one parent or «punish» the other. Every custody decision turns on a single, immovable principle: the best interests of the child (favor filii).
The judge and the public prosecutor will always choose the arrangement that offers the greatest emotional, educational and affective stability for the children, above the wishes or convenience of the adults.
2. The key factors
Both the Spanish Civil Code and the Civil Code of Catalonia set out criteria the judge must assess. The main ones are these:
A. The bond, and who did the caring until now
The judge will look at who took on the day-to-day care of the children up to the separation: who took them to school, who went to parents’ evenings, who handled medical appointments, and how responsibilities were divided. If both parents shared it equally, that is a powerful argument for shared custody.
B. Availability and working hours
Taking on custody takes more than willingness: it takes real time. The court examines both parents’ working hours, their flexibility, and whether they have family support or the means to arrange help. Hours entirely incompatible with the children’s school routine will weaken your position.
C. Roots: school, friends and family
Courts dislike drastic changes in a child’s life. Wherever possible they will try to keep children in their usual environment. If one parent moves to another city or a distant neighbourhood, forcing a change of school and separation from friends, that will count against them.
3. What the children themselves say
A very common question is whether children can choose who to live with. The law gives children the right to be heard by the judge whenever they are mature enough, and as a legal requirement once they turn 12.
That does not make their view decisive. The judge hears the child to understand their emotional situation, but decides custody on the evidence as a whole — psychosocial reports, expert evidence — precisely so that the child is not left carrying the enormous responsibility of choosing between their parents.
4. The arrangement courts now prefer
In the Barcelona courts, as in the settled case law of the Supreme Court, shared custody is no longer the exception but the normal and desirable arrangement. The starting point is that children need the continued presence of both parents; it is departed from only where shared custody is shown to harm the child, or where conflict is so severe that no dialogue is possible.
Conclusion: prepare in advance
A favourable custody outcome means showing, with documents, witnesses and reports, that you are the better option for the children’s stability. Do not leave these factors to chance or go into a hearing without thorough legal preparation.
Specialist family lawyer in Barcelona
About to start divorce proceedings and worried about your children’s future? At our office at Calle Balmes 188, Barcelona, Manuela Muñoz will review your family situation and build the right strategy.
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Phone: +34 611 647 462
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Email: info@diariodeunabogado.es
