Monday, September 25

The TC reviews whether it is constitutional to withdraw joint custody just because a spouse is under investigation




The Plenary of the Constitutional Court will study this week the withdrawal of joint custody in cases in which one of the spouses is investigated for domestic violence regardless of whether both parents consider that this scheme is the best for their minor children. The magistrates will thus resolve the question of unconstitutionality raised almost two years ago by who was then head of the Court of Violence against Women of Jerez. Judge Jorge Fernández Vaquero considers that the regulation of article 92.7 of the Civil Code is contrary to the best interests of the minor, the free development of the personality, the right to family life and the right to private life. The future of two minors will depend, for the time being, on the decision made by the guarantee body, since the magistrate who raised this issue with the TC on September 28, 2020 suspended the measures derived from the divorce of the couple who, Despite wanting shared custody for their children, they cannot apply for it due to a legal obstacle.

As ABC has learned from TC sources, the presentation, by progressive magistrate Juan Antonio Xiol, a civil expert, is contrary to the estimation of the matter.

The protagonist couple of this dispute separated in May 2018 and from that moment they agreed to have their two children on alternate weeks. In August They signed the regulatory agreement and agreed on a shared custody regime. In the middle of the civil matter, a criminal procedure was carried out due to events prior to the separation that resulted in a restraining order, the award of custody to the mother and a visitation regime in favor of the father with deliveries and collections at the point meeting. Months later both would be investigated for mutual aggression. During the confinement of the state of alarm, when the meeting point closed its activity, the parents returned on their own to the shared custody regime.

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The judge maintains before the TC that “there is no indicator of lack of suitability of any of the parents” for the proper exercise of their parental responsibility and that the deterioration of relations between the two that could derive from the pending criminal proceedings between the parties “has not affected the minor children in any way.” So much so that “as soon as they could, they have returned to the general custody system that they had freely agreed to before the provisional measures of the criminal process were adopted.”

The problem for the couple stems from article 92.7 of the Civil Code, amended in 2005, which provides in its first paragraph that «Joint guardianship will not proceed when either of the parents is involved in a criminal proceeding initiated by attempting against the life, physical integrity, freedom, moral integrity or sexual freedom and indemnity of the other spouse or the children who live with both.

The judge states that the prohibition established by the precept in question “is exhaustive, does not establish exceptions or qualifications, it is not limited to indicating to the judge weighting parameters when determining what is the interest of minors (…). Shared custody is prohibited in such cases without more. “When article 92.7 prohibits joint custody, it does so because the legislator considers that this form of custody is incompatible with the existence of domestic violence and not because he understands that the parent investigated for such crimes is incapable of exercising parental responsibility. , since if it were so, it would have prohibited custody in any case and it has not done so, ”argues the magistrate.

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The interest of the minor

Also remember that according to the jurisprudence of the Supreme Court, the best interests of the minor must always prevail. “Our Constitution implicitly includes this clause through the mandate to the public powers to ensure the comprehensive protection of children and the safeguarding of the rights of minors in accordance with international treaties on the matter», says Fernández Vaquero. “The interest of the minor acts as a limit to the interests of their parentsover which it prevails in the event of a conflict, without prejudice to the fact that this sacrifice must be proportionate and limited to the indispensable minimum, “he concludes.

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