The Supreme Court (TS) has asked the Constitutional Court (TC) to review the norm that "absolutely" prohibits the application of shared custody in cases in which one of the parents is being investigated for alleged ill-treatment, considering that it does not allow judges to "assess the seriousness" of the specific case to determine what is most beneficial for the minor.
Specifically, the magistrates have raised a question of unconstitutionality to the guarantee body on article 92.7 of the Civil Code, which establishes that "joint guardianship will not proceed" when either of the parents is under investigation for attempting to threaten life , physical integrity, freedom, moral integrity or sexual freedom and indemnity of the other spouse or of the children who live with both.
It is the second time that a court asks the Constitutional Court about this specific section of the Civil Code, although in the previous case it did not go into the merits of the matter by rejecting the question of unconstitutionality due to a problem of form.
The case now raised is that of a couple of police officers. According to the resolution, to which Europa Press has had access, the mother claimed custody of the minor before a Court of First Instance in Palma de Mallorca. In said petition, she did not allege any episode of gender-based or vicarious violence by the father against her or against the child they have in common. The man, when he answered the lawsuit, asked that joint custody be applied.
In November 2020, the court in question agreed to joint custody for alternate weeks, "all with the joint exercise of parental authority and payment of extraordinary expenses by half." But the woman then filed a complaint against the child's father for an alleged physical assault. And she, later, she took the case to the Provincial Court of La Palma, where the magistrates confirmed the resolution by which joint custody was adopted.
On the sidelines, the Women's Violence Court that received the woman's complaint for the alleged assault filed the previous proceedings that had been initiated. She filed an appeal against this decision and the Provincial Court considered that the "contradictory" statements of both the mother and the father should be "submitted" to an oral trial.
After said decision, the woman asked the Provincial Court to review the case related to shared custody and the Prosecutor's Office supported the appeal. The case eventually reached the Supreme Court, where the magistrates have considered it pertinent to raise a question of unconstitutionality before the TC.
The high court has ensured that article 92.7 of the Civil Code determines "absolutely" that "joint custody will not proceed when either of the parents is involved in criminal proceedings" for attempting to threaten life, physical integrity, freedom , the moral integrity or the freedom and sexual indemnity of the other spouse or of the children who live with both.
However, it has emphasized that "in the present case it turns out that the minor enjoys a shared custody regime that has been developing completely normally" since 2020.
The magistrates have insisted that the psychological opinion already considered "advisable" that the custody regime be applied between father, mother and child, "as the most beneficial for the interest of the child" which, according to the report, "has some excellent relations with their parents.
In addition, the Supreme Court has stressed that in the lawsuit filed by the woman -- pending prosecution -- "at no time does the existence of a situation of gender violence become apparent." And he recalled that "the first data in this regard arises from a subsequent specific incident, derived from a discussion about the child's backpack, in the course of which, allegedly, the father hit the mother on her forearm without causing injury ".
"There is no record that the minor has suffered any negative consequences derived from said event, it is not even said that he would have contemplated it," added the magistrates while insisting that "there is not the slightest hint of vicarious violence."
In this sense, the Civil Chamber has stressed that the current norm "does not allow the court to assess the seriousness, nature or scope of the crime that is attributed to one or both parents, nor the effect that it triggers in the relationship with the children or minor daughters, nor does it contemplate their intentional or culpable nature, nor the specific concurrent circumstances that require a specific individualized treatment".
Thus, they have made it ugly that, on the contrary, it operates with an "imperative and automatic character, without admitting any exception". "It is even enough that either of the parents is involved in a criminal proceeding, not yet prosecuted, for joint custody to be prohibited," they added.
The Supreme Court has considered that with this, "the interest of a minor is subordinated or postponed, without the possibility of an alternative assessment or any specific treatment", because, in his opinion, "other less burdensome alternative measures" fit.
For this reason, it has asked the Constitutional Court to review the article in question to determine whether or not it is unconstitutional because it conflicts with the best interests of the minor.
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