Joint custody divorce agreements continue to gain ground in Malaga province

In 2023, the latest year with available data, Spain's INE national statistics institute recorded a historic milestone in terms of divorces between spouses with children: for the first time in Spain, cases of shared custody exceeded those granted with primary or full custody to the mother. According to these official figures, in 50.7% of divorces between spouses of different sexes there were children needing continued care. In 3.5% of these cases, custody was given to the father, 47.8% to the mother, and 48.4% went to joint custody.

There's more: this custody regime, in which both parents have the same rights and obligations toward the children - the preferential formula, as specified by Spain's Supreme Court - has doubled in percentage nationwide in the last decade. In fact, years ago, sole custody was the general rule, almost always favouring the mother.

In Malaga province, despite the move to joint custody going at a slower pace than that of the national average, it is also on a strikingly upward trend. Joint (or 50/50) custody is now applied in nearly four out of ten divorces involving children, (specifically 36% of family divorce cases in 2023). This is more than significant considering that, ten years ago, only one in ten divorced couples were governed by joint custody (9.9% of cases).

The growing trend of joint custody is an option that is here to stay in Malaga, according to Jesús Odériz, a lawyer specialising in family matters, when interviewed by SUR. In fact, at his legal practice, Odériz Echevarría Abogados, he estimates that just over half of the divorces they handle end in shared custody. "The search for a balance between the rights and obligations to be upheld by the man and the woman is irreversible: this is the path ahead and the trend. There is no other option."

This lawyer, with more than 30 years of experience in family law, asserts that the best way to implement shared custody is by alternating weeks, so the children spend seven days with each parent. "In many cases, especially when the parents don't get along well, the pick-up or drop-off of the child can even be done via the school, so they don't have to see each other." Another example: "That said, to a lesser extent we also have what we call 'suitcase children'. That is to say: little ones who spend Monday and Tuesday with mum, Wednesday and Thursday with dad and then back again with mum for the weekend. And the following week, it's the other way round." Odériz also points out that in his practice they have experienced examples of shared custody settlements involving increasingly younger children.

Given the rise in joint custody in Malaga province, this lawyer focuses on an issue that has been identified in recent years related to breaches of custody agreements: "if you're going to fight for it, it must be for real, not pretend", he warns. Therefore, he argues, while in the majority of cases the parents take their childcare obligations seriously, there is a "considerable" percentage of fathers who request joint custody to avoid paying child support or who directly enforce it, then later "they do not exercise it or do so incompletely and then it's the mother who bears all the burden of having the children. In these cases, they find themselves alone and, on top of that, they receive no child support."

Odériz also highlights another aspect linked to this growth in joint custody arrangements: "There are women who, to prevent such custody being obtained, file completely unfounded complaints of gender-based violence that limit the possibility of shared custody until the criminal proceedings are resolved." Lastly, this family lawyer mentions another reality: "We are seeing many complaints of alleged sexual abuse with the aim of harming the other parent or limiting shared custody". In his opinion, in this sense, this state of affairs can be a "double-edged sword".

"They have increased, yes, but let's not lose sight of the fact that, nationally, half of all custody rights are granted exclusively to mothers: there's still a long way to go in this regard", says Elisa Chuliá, sociology lecturer at Uned (Spain's national university for distance-learning) and researcher at Funcas (a non-profit research group in Spain), reflecting on these statistics from the INE.

In the sociologist's opinion, several factors are contributing to this social shift. First and foremost, she highlights the purely legal issue: "For years, legal doctrine has favoured this type of regime", she states. "Legal changes take a while to be reflected in reality. Sometimes the law lags behind society and other times it promotes social change. In this case, it seems that to have managed to contribute to change."

Next, the expert stresses that maintaining full custody of a child, as well as being costly in economic terms, is also costly in terms of time availability. "Sharing custody means having 50% of the parenting time. It's not just a question of money, it's also a question of time you can dedicate to work, to professional growth, or to leisure, which is something that is becoming more and more important to society: leisure is increasingly seen as part of a reasonable and healthy life. Taking care of a child alone, without the help of the other parent, can be problematic in this respect, exhausting."

Finally, another factor influencing the statistics has to do with a change in the social roles of both men and women. "Traditionally, the woman was the caregiver and the man was the resourceful head of the family. Now fathers want to be more involved and play an active role in the upbringing of their children while women also provide resources for the family."

The expert predicts that this trend will continue in the future and joint custody will continue to gain ground. "It's demanded by both involved fathers and mothers who need to share parenting responsibilities", she concludes.