The law plays a key role in protecting children: it sets out a legal framework that safeguards their rights and wellbeing. In a divorce, children are not strictly parties to the proceedings, but they are the main people the proceedings must protect. The whole procedure must be guided by their best interests, a principle set out in Spanish legislation and case law.
Courts are not the right place for children, but if they have to attend, it must be with every safeguard to protect their rights and wellbeing.
The best interests of the child
When parents separate, the judge does not decide what is best for the parents, but what is best for the children. That is why custody, visiting rights and child support are decided mainly according to the children's needs.
The right to be heard
Children have the right to be heard in proceedings that affect them when they are mature enough and, in any case, usually from the age of 12. However:
- The child does not decide who to live with.
- Their opinion is taken into account, but it does not bind the judge.
- The hearing is usually held privately to avoid family pressure.
Custody
The judge decides which arrangement is most beneficial for the child: sole custody by one parent or joint custody. The current trend in Spanish courts is to regard joint custody as a normal and desirable option when it benefits the children and there is a minimum ability to cooperate between the parents. But, as always in law, each case must be looked at individually.
Visiting rights
If one parent does not have custody, a schedule of visits, communication and stays is normally set to maintain the relationship with the children. Above all, it is considered the child's right to have a relationship with both parents.
Child support
Parents are obliged to contribute to the maintenance of their children: food, clothing, housing, education, medical care and ordinary education costs. This obligation exists even if one parent has a low income, except in exceptional circumstances.
The role of the Public Prosecutor
In every divorce involving minor children, the Public Prosecutor (“Ministerio Fiscal”) takes part to look after their interests and reports on the measures that affect them.
Use of the family home
The use of the family home is usually decided mainly according to the children's interests. Traditionally it is granted to the parent the children live with, although the law and the courts have increasingly accepted other solutions depending on the circumstances. This is also why courts tend to reject parents using their children as a means of pressure in the conflict.