Divorce is a particularly painful time in the life of a marriage, even more so when children are involved. If you are facing this situation, below we talk about the types of divorce with children that exist and which one is best for them. Because you always have to think about the good of the children.
Divorce with children: what types are there?
We are aware that no two divorces with children are the same. If we talk about the main types of divorce that exist, in general there are two:
Divorce by mutual consent
This procedure is regulated in article 777 of the Spanish Civil Procedure Act (Ley De Enjuiciamiento Civil) and is included in article 87 of the Civil Code.
In this type of divorce, a joint divorce petition is filed, with the regulatory agreement or agreements reached between both parties. The parties go to court to sign the agreement and the judge and the Public Prosecutor’s Office validate it.
If there are minors, the judge must validate the agreement or agreement of both parties.
This is the type of divorce in which the spouses do not reach an agreement, including in relation to the custody of the descendants. It is regulated in articles 769 and 770 of the Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil).
For this case, a family lawyer is needed, in order to present the corresponding allegations against the objections that may be given by the opposing party. It will then be the judge who establishes the regulatory agreement in the sentence. In the case of a separation with children, the Public Prosecutor’s Office will act.
Types of guardianship and custody
The circumstances of each family may be different, so it is important to consider the different types of custody and guardianship that exist. These are:
Single-parent (sole) custody
This is the most common form of guardianship and custody, and can be maternal or paternal. The custodial parent is the one who takes care of the children and is the one who will use the family home and manage the maintenance payments.
The non-custodial parent has the right to visit, communicate and stay with the children. He or she may even spend several days with the children, including overnight stays.
Shared custody and guardianship
In the case of a divorce with children with shared custody, which is becoming more and more frequent, both parents enjoy the company of the children for alternating periods. That is, fortnights, months or quarters. Both parents can make decisions on an equal footing.
The interests of the child always prevail over those of the parents. Therefore, the financial resources of the parents will be taken into account and even the possibility of selling the family home so that both parents can have a home where the child can go.
This is not always the best option for the children, which is why more emphasis is usually placed on sole custody.
This specific type of custody refers to when some of the children are left with one spouse and the other children with the other spouse. Although it is not recommended to separate siblings, there may be justified cases.
Custody by a third party
This modality can be agreed by the judge when there are extraordinary circumstances that do not allow the custody to be attributed to the parents. For example, situations of abuse or abandonment of the family.
In such fatal situations, custody can be granted to the grandparents or other close relatives.
What is the difference between parental authority and custody?
Parental authority is not the same as custody of children. Parental authority as such refers to the duties that parents have to fulfil over their children, be it assistance, education, administration of the property, etc. Custody, on the other hand, refers to the decisions that affect the day-to-day living with the children.
To understand this better, we can use a simple example. For example, enrolling a child in school or having a child undergo surgery are aspects that fall under parental authority. Custody, on the other hand, covers other matters such as daily food, hygiene, taking the child to school, etc.
During the marriage, it is possible that both parents are taking care of both parties and do not have to worry about differences, but this changes in the case of a divorce with children.
Usually, parents seek to make the break-up as painless as possible for the children. So even if custody is with one parent, both parents usually have parental responsibility for the child. However, parental rights may be granted to only one parent.
In a divorce with children, the best solution will be the one that is decided in the best interests of the child. It is therefore advisable to seek the advice of a lawyer specialising in family law, so that he or she can inform you of the different options in the case of separation with children.
Do you have any doubts? Contact us so that we can handle your case.