The Coronavirus and Shared Custody in the state of alarm
Many are the doubts that assail us since last March 14, 2020 the state of alarm was decreed. We are now trying to clarify those that have arisen around the obligation or not to comply with the visitation regime or the periods of stay with one or the other parent in cases of joint custody.
Royal Decree 463/2020 that declares the state of alarm has severely limited the freedom of movement of people, a limitation of mandatory and necessary compliance for all, but has some exceptions.
Thus, we are allowed to circulate on the roads or spaces for public use as long as it is to carry out any of the activities contemplated in its article 7, among which is that of assisting and caring for the elderly, minors and dependents.
Therefore, in principle, it should be understood that departures to deliver or pick up minors from the other parent’s home and return them to their own would be allowed.
However, as an exception to the general prohibition of mobility that is, it must be interpreted restrictively, and always prioritizing the interest of the minor, the health of the parents and public health, the ultimate goal of the declaration of the state of alarm.
This means that such exchanges should not be carried out, logically, in cases where one of the parents is infected by the coronavirus, has had contact with infected or belongs, or lives, with a risk group.
Nor does it seem advisable, in principle, when the distance between the parents’ homes requires long trips, or the short duration of the visit in relation to the time required for the trip makes it unadvisable, which may occur in week-long visits without an overnight stay.
Convenience for parents to reach agreements.
The Family Courts of the different judicial parties have been formulating the criteria that they consider should be followed when compliance with the measures agreed upon by them is affected by the limitations imposed by the state of alarm, criteria that we must take into account to avoid conflicts future, since it falls to them the decision to suspend, alter or modulate said measures when their practice is affected, directly or indirectly, by the state of alarm.
As always, they appeal in the first place, to parental responsibility and the convenience of parents reaching the agreements they deem appropriate, always in the interest of the minors.
Undoubtedly, this will always be the best solution, especially if we take into account that, given the generalized suspension of judicial proceedings, the judicial response to our demand, if no agreement is reached, will come when the state of alarm has ended, unless we justify the need for the Court to urgently adopt some measure to avoid harm to the minor, which will not occur simply because he or she remains with one or the other parent if other circumstances do not occur, such as, for example, that they may be affected your health.
When agreements are not possible, the judges are inclined to consider, in general, that the alteration by one of the parents of the visitation regime or periods of stay during the state of alarm does not constitute, in principle, a breach that could have consequences in the future (such as modification or suspension of visits).
Although it will be necessary to attend to the reasons alleged for such alteration, because behaviors that denote bad faith cannot and should not be covered by having used the present crisis to fail to comply with the agreed measures and harm the other.
Different criteria of the different Family Courts
The first criteria announced by the different Courts when the state of alarm was declared were disparate, from which they considered that visits were automatically suspended, or that the minor should return with the custodial parent and remain with him during confinement, to which They considered that, as a general rule, weekend visits should be carried out normally, with weekly visits without overnight stays suspended.
In cases of shared custody, it is a general criterion that the regime is complied with normally, except for specific circumstances that advise against it.As the period of confinement lengthens, it seems the most reasonable to try to comply with the agreed visits as far as possible, except for those that do not involve an overnight stay, these can be compensated by extending the weekend visit by one day, for example.
Need for a new lawyer when the measures were mutually agreed with a single lawyer
When the measures were agreed in a procedure by mutual agreement with a common lawyer for both parents, and disagreements arise when complying with them, the lawyer can no longer continue advising either of them, each parent having to contact a new one to defend their interests, as required by the Code of Ethics for the Legal Profession.
Therefore, if this is your case, you should ask a new lawyer for your inquiry.
At LAWYOU we have lawyers with many years of experience who can help you or provide you more information about the currently applicable legislation and future changes.
Do not hesitate to contact us to tell us about your case through our email : firstname.lastname@example.org or, if you prefer, you can also call us at 602 226 895 . Or you can leave us your information here.