DIFFERENTIATE THE CONCEPTS OF PARENTAL AUTHORITY AND CUSTODY UNDER SPANISH FAMILY LAW

When considering divorce, it is not strange to confuse between parental authority (in Spanish law, parental responsibility is usually referred to as ‘patria potestad’ (parental authority). It consists of the rights and duties of the individuals, normally the parents, or legal entities entrusted with the protection of the minor’s person and property by law or by a court decisionand guard and custody), the differences between them. Next, we present some brief notions about one and the other.

Parental authority: it is always shared (except in very exceptional cases, for example, derived from situations of child abuse).

It has to do with the “big” decisions about the minor’s life, for example, what type of education will he receive, what school will he attend, what religion will he profess or if he will not profess any, any question about the health (to receice surgery, medical treatments).

Guard and custody: can be attributed to a parent exclusively or shared between both parents. It consists of who is with the minor on a daily basis, who makes the “small” daily decisions.

If it is exclusive, the non-custodial parent has a right to visit the minor (normally, alternate weekends, some afternoon during the week, half of the school holidays). In this case, alimony is established in favor of the minor, because the parent with whom the minor is living clearly has more expenses related to maintaining the minor.

As for shared custody, it is about the time that the minor is with each of the parents is practically divided 50/50. As the time is distributed, maintenance is not usually set.

The way of organizing joint custody is very varied, depending on the age of the minor and family circumstances, as examples:

• alternate weeks, fortnights or months (in some cases it has even been alternate days)
• that the minor is always in a house and that the parents rotate (for example, one week there is one parent and the next the other);
• or the minor is the one that goes from father’s house to mother’s.

As I said, these are brief notes that can help to understand the difference between parental authority and guard and custody.