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The visiting regime for separated parents with minor children was plunged into legal limbo after the government last Sunday decreed a state of alarm. Family Courts throughout Spain began to receive a flurry of inquiries from professionals and individuals about the influence that the measures adopted by the Pedro Sánchez Executive had on the guard and custody regime and the visitation regime for minor children.

Due to the lack of guidelines to regulate this new situation, the Permanent Commission of the General Council of the Judiciary (CGPJ) has established this Friday that it is up to each judge to decide on the suspension, alteration or modulation of the custody, visits and stays regime. agreed in family procedures when the provisions of the alarm decree "directly or indirectly affect the way and means under which the agreed measures are carried out."

In addition, the governing body of the judges chaired by Carlos Lesmes points out that the measures taken judicially in family proceedings are not affected by the general rule of suspension of time limits and procedural actions during the state of alarm, since although it is not they find in themselves among those essential actions whose realization has to be ensured, once adopted they are placed at the level of the execution of the judicial decisions that have agreed upon them "and they fall within the material content of the relations between the parents in relation to the minor children that arise as a consequence of the marriage annulment, separation or divorce and of the judicial decisions that establish the conditions of the exercise of parental authority, custody and custody and the regime of visits and stays ".

This does not mean, according to Council sources, that the practical execution of the established regime is not affected by the provisions of Royal Decree 463/2020 , since "the need to preserve the health of children and parents may impose, depending on the circumstances, the modulation or modification of the custody, visits and stays regime, altering or suspending the execution of the agreed measures or determining a particular way of carrying them out. "

The members of the CGPJ point out that, without prejudice to the possibility, "and even convenience", that this variation of the regime and the way of executing it is the product of consensus between the parents, in the absence of an agreement "it is up to the judge or magistrate to adopt the appropriate decision "depending on the circumstances of each case, to guarantee compliance with the decree and the preservation of the health and well-being of the children, as well as the health of the parents.

Different judicial responses

However, the Council specifies that "the foregoing is not an obstacle to the eventual adoption of agreements in the sectoral boards of Family Courts in order to unify criteria and establish guidelines for joint action in order to satisfy the purposes of protection to which the alarm decree is oriented ". At the moment, the response that the judges are giving in different parts of the national territory is very uneven.

For example, the Family Courts of Barcelona agreed this Thursday that separated parents with minor children should do a responsible exercise to reach the "greatest possible agreements" and minimize the mobility of children . The Barcelona City judges established that in the event that one of the parents "presents symptoms of contagion or has a positive result" by Covid 19 "it is preferable that the guard and custody be held by the other parent. With this measure, the togados, seeks to avoid contagion of children by "understanding that automatically causes force majeure" which suspends the measures agreed in the separation agreements.

On the other hand, the judges of Valladolid agreed that, both in the cases in which a regime of shared custody and custody is established and in the cases in which one of the parents has exclusive custody and custody attributed, "have been to comply with the resolutions, making deliveries of minors on the dates set for the exchange. " In addition, the Valladolid board of judges agreed "to suspend for the moment and until the state of alarm is lifted, the inter-weekly visits, with and without an overnight stay", both in the cases of guard and shared custody as well as exclusive custody of a parent.

On the other hand, the Malaga Family Board of Judges stipulated that "transfers for compliance with the stay and contact regime or for compliance with periods of shared custody are not covered as an exception in any of the provisions of the alarm decree "on mobility, so it was agreed to suspend them. In Malaga, the youngest will have to keep only one parent during confinement and, once the alarm state and mobility-limiting measures for health reasons have ended, "the time spent living together not developed by the parent who has not had the minors with him. "

Finally, in Zaragoza, the family judges agreed that weekend visits should be maintained in cases of shared custody, although due to the pandemic, intersweek visits were suspended without overnight stays. As a general rule, in cases of joint custody, changes must be made "on the corresponding dates in the way in which the minor is less exposed to the coronavirus."

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  • Spain
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  • society
  • Childhood
  • Shared custody
  • General Council of the Judiciary

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