Justice denies that a doctor with weekly guards has shared custody of his son

• The precedent. A waiter loses shared custody of his children "for his long working day"

Can a doctor get joint custody of your minor child? What if your job forces you to perform up to three guards a week? We already knew that there are previous cases, in this case that of a waiter who, due to his extensive working day, was denied last summer, as published by EL MUNDO. Now the same thing has just happened, months later, and also from the same judicial body, the Provincial Court number 2 of Badajoz . Although the Extremadura court clarifies its sentence, as it also did last July, it explains it in great detail.

"It is not about what profession the father has, but if that work allows, with their schedules, the appropriate care of the child." Thus, the ruling develops that "waiters, dependents, delivery people, emergency doctors, etc., also have the right to enjoy a regime of both exclusive custody and shared custody" and adds that "there are generally no professions or trades that, on their own, exclude custody of minors. Custody is not the exclusive patrimony of idle parents or with reduced or flexible working hours. "

In this way, the determining factor "is not the occupation performed, nor is it necessarily the specific working day carried out. The most important thing is that, despite the inconveniences, despite the absences, adequate care of the child is guaranteed. It must be ensured that the obligations inherent in the custody of the child are covered, "he says.

Therefore, this court denies the appeal filed by a doctor of Portuguese nationality residing in Badajoz, who had appealed the judgment of the Court of First Instance number 4 of Badajoz, dated February 1, 2019, which had already given the reason to the mother of the only 10-year-old son that the couple had during their 10-year relationship.

The ruling has the backing of the Prosecutor's Office, which had opposed the appeal filed by the father by asking, literally, "How can someone deal with parental obligations when three medical guards are made 24 hours a week and you have to observe mandatory breaks? " And the prosecutor himself replies: "Badly or, at least, hardly, and with greater reason -develops- when the work centers (of the father of the minor) that provides services are very far away".

"Weekly custody is unfeasible"

And that is the doctor performs the guards in different hospitals of neighboring Portugal , including one of them 261 kilometers from the place of residence of the minor, Badajoz, where both the parent lives - now with a partner - as the mother with the son. In fact, they all live in the same neighborhood of the La Paz capital. So the sentence admits no doubt.

"Under such conditions, the proposed weekly custody is unfeasible (because) there would be days when he would not have any contact with his son, the truth being that the only family support he has (the father) in Badajoz is his current romantic partner and would have in his case, to delegate to external caregivers, "explains the ruling that firmly states that" good intentions, desires, alone, are not enough. "

The Hearing reasons that the doctor leaves Badajoz at 07.00 in the morning and returns at 11.00 and 11.30 the following day. In addition, he does not have specific days assigned to make the guards, although he usually lends them on Mondays and Wednesdays.

The case is that previously, after the separation of the couple, the father had accepted that the custody fell on the mother of the minor in the agreement signed between the parties. It was November 2013 and the son was four years old. In this agreement it was agreed to attribute the custody and custody of the child to the mother, with a regime of visits in favor of the father, establishing a monthly pension of 500 euros. Now, the father also wanted to cut the amount in half, 250 euros.

The mother also lives with her current partner, and works as a medical visitor, with a morning shift from 8 am to 3 pm. In February 2017, the doctor filed a request for modification of measures requesting custody and shared custody. He proposed that this guard be weekly and that deliveries and pick-up of the child be carried out on Sundays at 8:00 p.m. at the parent's home.

The father claims to live 300 meters from the mother

The appellant says he agreed to the initial agreement and gave custody to the mother because he had two jobs: one in Badajoz, in a private clinic, and another in two hospitals in Portugal. Currently, he says he has more free time, since he no longer provides services in Badajoz. It also highlights that the homes of both parents are only 300 meters away. It also alleges that there is fluid communication between both parents and stresses that the mother, being a medical visitor, spends a lot of time away from home and is forced to delegate the care of the child to third parties.

He assumes he could do the same if custody were shared. However, the prosecutor shows his rejection and asks "how can someone deal with parental obligations when three medical guards are made 24 hours a week and mandatory breaks have to be observed."

The mother's defense, represented by Vestalia Abogados , argued that she does not understand "how it can be advocated that the child spend two days with a parent and then two days with another and then alternate on weekends." He understands that "the provision of medical services in three hospitals in Portugal, carrying out intensive 24-hour guards , is poorly combined with the effective exercise of the role of father in the framework of a shared custody system."

In addition, the mother draws attention to the fact that during the last six years the agreed exclusive custody regime has been developed "in an appropriate and positive manner". He also points out that there have been multiple occasions when the father, "at the last minute, after an exhausting working day, has modified his visits by being forced to stay in Portugal." In addition, he also accused the father of having a life "disorderly, random, reckless and contrary to the interest of the child."

The sentence also criticizes the father's attitude in the lawsuit. "He has been changing his mind throughout the process: in the lawsuit he proposed weekly shifts; before the psychosocial team, he suggested daily shifts (Monday and Tuesday with the mother, Wednesday and Thursday with him and alternates on weekends); on the Act of the trial, when questioned, came to ask for custody the days he had no guards, and finally, in the conclusions phase, his lawyer reaffirmed in the petition made in the lawsuit. It is not serious, "he describes.

The court contemplates family assistance

In short, for the court, which recalls in its statement the judgment of the waiter last summer, recognizes that " joint custody is not only provided for unemployed parents or employees with flexible hours." And he argues: "In a society where it is common for both parents to work full time and where the children's daily activities are multiple, the fulfillment of parental duties is not always very personal. It is not possible for you to do everything yourself. That it is a reality. Hence, family help and external help are the order of the day. They are a means or complement for parents to provide adequate care for their children. "

The Provincial Court of Badajoz emphasizes that all this "must be seen as something logical and natural. Of course, we are talking about complementing, not replacing the parent in the tasks that are their own. The delegation must be punctual, not total. In that case, it breaks the interest of the child and makes any type of custody, exclusive and shared, unfeasible, "he summarizes.

Finally, regarding the decrease in the payment of the food pension, the court considers that the real economic capacity "of both parents, globally considered, has not been altered", while the mother has always considered that her former partner maintains currently "a high train of life", providing various evidence of this (car purchase, housing, etc).

According to the criteria of The Trust Project

• Badajoz
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