Shared custody configuration in Spanish law

The paper deals with the specific organization of the shared custody regime in Spanish law. This requires a separate analysis of two aspects: what the physical organization will be like and how the time will be distributed among the parents. With regard to the first question, there are two possible alternatives for the physical organization of the shared custody regime: that the children remain in the same home and the parents rotate, or that the children rotate between their parents’ homes. Both possibilities are analyzed, considering the advantages and disadvantages of each, as well as their practical repercussions, through the study of the judgements of our courts. With regard to the second aspect to be analyzed – the distribution of time between parents, as we know, shared custody does not necessarily imply an equal distribution of time, although it does seem to be similar, as this is the main data that allows it to be differentiated from an exclusive custody regime that involves a wide regime of visits for the non-custodial parent. The paper attempts to determine the necessary time requirement to be able to speak of shared custody and addresses the issue of the specific duration of periods of alternation – which may be long and extended in time or, on the contrary, short and frequent. For this, once again, the jurisprudence emanating from our courts is taken into account, as well as the views of the authors who have worked on this issue.


Introduction
In order to address the specific configuration of the shared custody regime, it is necessary to analyze two aspects separately: on the one hand, what the physical organization of the regime will be like and, on the other, what the allocation of time between the parents will be like.
Neither of the two questions has been foreseen either by the Civil Code (Código Civil, Gaceta de Madrid, No. 206, 25/07/1889) or by the or by the laws of the different regions of Spain. In any case, in order to determine both the modality of shared custody to be adopted and the temporality of the exchanges, the autonomy of the will of the parties will prevail, so that the judicial authority will only intervene in the absence of an agreement. To this end, it should be understood that the specific configuration of the custody regime should be included in the regulatory agreement submitted by the parents. 1 Not in vain, in the event that the parties limit themselves to agreeing on the shared custody regime without foreseeing its specific content, it seems that it would be appropriate for the judge to make use of the power granted to him by article 777.4 of the Law of Civil Procedure (BOE (Official State Gazette), No. 7, 08/01/2000) and require the parents to complete this point.
I will now address separately the two issues that arise in determining the specific configuration of the shared custody regime. To this end, I shall begin by referring to the forms of physical organization that it may present (warning that, although this is an issue that is closely related to the attribution made of the use of the family home, I am not going to dwell on the criteria for the attribution of that home). Subsequently, I will refer to the temporal distribution.

Physical organization
The legal scholarship and commentary has generally identified two possible alternatives for the organization of the system of shared custody: 2 that the children remain in the same home and the parents rotate (known as "nest custody") or that the children rotate between the homes of their parents (known as "suitcase child"). However, according to some authors, 3 I believe that we should talk about a third organizational alternative: one in which both parents stay in the same house with their minor children. 4 Although it is the least common option in practice (since it is normal for the spouses to cease living together after the break-up), it is perfectly admissible. In any case, this assumption raises no doubt from the point of view of their physical organization, so I will not dwell more on it.
Returning to the two most frequent organizational alternatives, the first one I have mentioned is what our legal writings have called "nest custody", 5 "house nest" 6 or "child nest". This means that the children remain constantly in the family home and it is the parents who rotate. 7 Although a priori it may seem to be the solution that least affects the stability of the children 8 and is the fairest for the parents (since both will be able to enjoy the use of the family home on equal terms), the fact is that in practice it has several disadvantages.
First of all, I believe that this form of organization of shared custody can be a source of constant conflict between parents, 9 which can end up harming the , No. 7179, pp. 1763-1764and Berrocal, A.I., Los criterios para la atribución del régimen de guarda y custodia compartida, "La Ley Derecho de Familia" 2014, No. 3, p. 48. interests of the child. Sharing a home (even if it is alternately) always causes problems, as it involves sharing various items and objects (bedrooms, wardrobes, clothes, etc.) 10 and having to distribute cleaning tasks. Disputes may also arise over the payment of the various expenses generated by the home or the acquisition of products necessary for the house (cleaning, food, etc.). In addition, the situation will be aggravated in the event that one of the two parents rebuilds his or her life with a new partner. 11 On the other hand, for this possibility to be viable, it is necessary for parents to have some purchasing power. Normally they will have to have three homes 12 (in addition to the one in which the child will constantly reside, each parent will have to have their own home, where they will live during the periods when they are not with the child). Although it is also possible to establish this option when they only have two homes (the family home, and another that is occupied by each parent during the periods in which they do not have to care for their children), 13 this would involve sharing not one, but two homes, which would multiply the problems I referred to in the immediately preceding paragraph. 14 Notwithstanding the foregoing, the aforementioned drawbacks have not impeded that in some cases our courts have opted for this alternative. 15  14 However, we did find some judicial pronouncement in which this form of custody has been chosen despite the fact that the family had only two dwellings (see: that, which there will be cases in which the concurrent circumstances demand to adopt this formula (for example, when the minor suffers some type of pathology that requires his rest in the same domicile). 16 The other option for organizing joint custody is for children to rotate between their parents' homes, a modality commonly known as "suitcase child". 17 In my opinion, this is the most recommendable alternative in most of the cases (this has also been understood by a good part of our jurisprudence). 18 However, it is true that this form of organization also has a major drawback, and that is that it can affect the stability of children, 19 who will be forced to make continuous changes (precisely the situation which has compelled this form of organization to be called 'child suitcase'). However, this disadvantage can be minimised if the parents' homes are close to each other and if the periods of permanence with each parent are sufficiently long (to avoid the continuous transfer of the child).
In conclusion, if we consider the disadvantages of one or the other system of organization, in my opinion it is more advisable for parents to remain in their respective homes and for their children to rotate (but trying to take all the necessary precautions so that this measure affects the stability of minors as little as possible). This does not prevent the reality, however, that there are certain cases in which it is advisable for the minor to remain in the same home and for the parents to rotate.

Allocation of time between parents
In the event that the parties do not agree and it has to be the judge who decides about the temporary distribution of the cohabitation, he will do so based on the different circumstances that concur in the specific case. 20 We only find timid references to the aspect of temporal distribution in the Code of Regional Law of Aragon (BOA (Official Gazette of Aragon) No. 67, 29/03/2011) and in the Valencian Law 5/2011 of 1 April on family relations for children whose parents do not live together (BOE (Official State Gazette), No. 98, 25/04/2011), which are contradictory to each other. While the first points out that shared custody does not entail an arithmetical distribution of the time spent with one and the other parent (see Exposition of Reasons for the Code of Regional Law of Aragon); the second seems to establish just the opposite, pointing out in article 3 a) that shared custody is characterized "(...) by an equal and rational distribution of the time of cohabitation of each of the parents with their minor sons and daughters (...)".
In our jurisprudence 21 and legal commentary and scholarship 22 there is almost unanimity in considering that, in general, shared custody does not necessarily imply 20 See: Tena, I., La ruptura de pareja con hijos: la opción por la custodia compartida, in: Factores y contenidos de la evolución del an equal distribution of time. 23 In this sense, the failed Draft law on the exercise of parental co-responsibility and other measures to be adopted after the rupture of cohabitation presented by the government on 19 July 2013 was also pronounced, whose Exposition of Reasons expressly stated that shared custody does not necessarily imply that the periods of alternation are equal 24 . Therefore, with the sole exception of the Valencian Law 5/2011 of 1 April 2011 on family relations for children whose parents do not live together (BOE (Official State Gazette), No. 98, 25/04/2011) (in which, as I said, it did seem to require an equal distribution of time), it is not necessary to speak of shared custody that the child is in the company of each parent exactly fifty percent of the time.
However, the fact that joint custody does not require an equal sharing of time may pose problems in distinguishing it from an exclusive custody regime that involves a comprehensive regime of communication, relationship and stay for the non-custodial parent. For this reason, it seems reasonable to understand that in order for there to be a proper shared custody regime, children should remain a minimum of time with each of their parents 25 (since this is the key data that will allow us to distinguish it from exclusive custody with a broad regime of communication and stays). 26 In this respect, legal scholars and commentators have considered that it is possible to speak of shared custody when the children are in the company of each parent at least between forty and forty-five percent of the time. 27 Análisis de la regulación legal de la custodia compartida tras la separación y el divorcio: una propuesta de lege ferenda, CEFLegal: "Revista Práctica del Derecho" 2011, No. 131, p. 54; Pinto, C., La custodia compartida en la práctica judicial española: los criterios y factores para su atribución, "Misión Jurídica: Revista de Derecho y Ciencias Sociales" 2015, No. 9, 2015, p. 149; and Messía, J.A., El reparto de los tiempos de estancia de los hijos menores con los progenitores en los casos de custodia compartida, "La Ley Derecho de Familia" 2016, No. 11, p. 2. 23 However, we also find some authors who consider that shared custody in any case requires an equal distribution of time (see: Romero, F., Coparentalidad y género, "Intervención Psicoeducativa en la Desadaptación Social" 2009, No. 2, p. 20). 24 See: Statement of reasons for the Draft Law on the exercise of parental co-responsibility and other measures to be adopted after the break-up of cohabitation: "(...) without shared custody necessarily implying an alternation of the residence of the children with their parents in equal periods, but in an adequate time for the fulfilment of the purpose of custody (...)". 25 At this point I disagree with those who claim that it is possible to speak of shared custody even in cases where the child permanently resides with one of the parents (see: Lathrop, F., Custodia compartida de los hijos, Madrid, 2008, p. 511). 26 However, other criteria may also be taken into account, such as whether or not there are overnight stays with both parents (see: Martínez de Aguirre, C., op. cit., pp. 147-148). 27 See: López, A., El tratamiento en derecho español de la custodia de los hijos menores en las crisis de pareja: la novedosa opción del legislador aragonés por la custodia compartida, "Revista Boliviana de Derecho" 2015, No. 19, p. 216. In any case, if we look at the casuistry, the truth is that it is usually established as an equal distribution of the time of coexistence with one parent and another. As for the specific duration of the periods that the minor will remain with both parents, there are multiple options, finding assumptions in which it has been distributed by hours, 28 by days, 29 by weeks, 30 by fortnights 31 (in reality, these will be months, 37 by semesters, 38 by years, by school courses, 39 etc. There are those who have even raised the possibility that the periods of alternation of minors are not fixed either in the regulatory agreement or in the sentence, leaving the parties to decide at each moment on the temporary distribution they deem appropriate. 40 However, in my opinion, this can lead to a certain degree of legal uncertainty and end up becoming an important source of conflict. With regard to the most appropriate temporal distribution, in my opinion, long periods of alternation (from 15 days) are generally preferable, as this minimises the risk that continuous transfers end up affecting the stability of the child. This has also been understood by a good part of our jurisprudence 41 and legal scholars. 42 Obviously, if long periods of alternation are established, it may be advisable to establish a regime of visits in favour of the parent who is not with the minors at all times.
However, in the case of very young children, shorter and more frequent periods of alternation 43 (by the week or even by the day) are more advisable, and these can be extended as the children grow older. 44