Confinement in our homes has been vital to stop the Covid-19 pandemic in Spain, but in turn this situation has caused many parents to have been unable to see their children for more than two months, in cases of separation or divorce.
In some cases, by mutual agreement between the parents to preserve the health of minors and relatives over 65 years of age with whom they could live. In others, because one of the parents has unilaterally suspended the visitation regime, although the exceptions of the state of alarm contemplated the exits to go to take or collect the children in cases of divorce.
In both situations, these lost days can be made up for. To facilitate the process, the Government published in Royal Decree-Law 16/2020 of April 28, a special and fast procedure to give preference to these demands and recover the visits lost due to the state of alarm.
Nuria Vargas, family lawyer at Vilches Abogados, explains what a father must do to benefit from this procedure and what characteristics it has.
Divorce and custody, the most frequent inquiries of families
Nuria Vargas, manager of the law firm, has not stopped working during the state of alarm and confirms a large increase in the implementation of divorce or separation measures and, above all, the visitation regime.
He explains that, in the first case, most of the separations were made by mutual agreement, while the impossibility of being able to see the children has been a very recurrent query. The lawyer insists on reminding parents not to miss those visitation days :
The family law lawyer reminds us that “the General Council of the Judiciary made it clear that the state of alarm does not justify the breach of custody agreements unilaterally by one of the parents. Only a judge can suspend them.”
In addition, Royal Decree 463/2020 of March 14, indicates in article 7 that during the validity of the State of Alarm “neither the validity and development of the shared custody systems, nor the visitation regime are affected by the limitations of circulation in force, as long as they are done with the proper security measures “ :
“People may only circulate on public roads, to carry out the following activities: assistance and care for the elderly, minors, dependents, people with disabilities or especially vulnerable people.”
So the suspension of the visitation regime unilaterally by Covid-19 has no legal justification.
Express procedure for three months
Although most couples tend to agree on how to make up for missed visitation days, there are situations in which reaching an understanding is an impossible task. For them, RD 16/2020 establishes in article 3 a new and special procedure to preferentially process compensation for visits or custody of the parent who has not been able to enjoy them because of Covid-19 (Coronavirus). Its validity: three months after the end of the state of alarm.
“A special, preferential and summary procedure is regulated for family issues derived from the pandemic regarding visitation regimes or shared custody not enjoyed. Through this procedure, those issues raised during the validity of the state of alarm and up to 3 months will be decided. after completion “.
This article also includes the urgent processing of “adjustments in pensions for parents in situations of vulnerability due to ERTE or loss of employment as a result of the coronavirus pandemic:
“Request the review or establishment of definitive measures on marriage burdens, compensatory pensions or alimony and provided that the review is based on having substantially changed the economic circumstances of the spouse and parent as a result of COVID-19.”
How do you claim?
The lawyer explains that the normal thing during the quarantine days is to have reached a verbal agreement between the parents to recover now, already in the de-escalation, the lost visiting hours. In these cases, it is useful to record the agreement with emails or text messages.
But when there is a bad relationship between them, it will be necessary to notify the breach officially, by burofax or certified email.
With this justification for the breach of the visitation regime, the judicial procedure begins with the written claim (the same as the ordinary procedure), which is presented in the court that would have ruled on the visitation or shared custody regime.
The great advantage of this tool is the speed of the sentence. Without it, lawyers can only appeal to an enforcement action to force the parent who has not allowed visits to comply with the established regimes and raise possible compensation.
Nuria Vargas explains that this can take up to six months, while with the new government measure, a hearing can be held ten days after the claim is admitted for processing.
Prior to the holding of the hearing, an attempt may be made for the parties to reach an agreement that will be judicially approved and children over 12 years of age have the right to express their opinion .
If an oral judgment is issued and the parties express their will to ‘No Appeal’, the judgment will be final and the plaintiff parent will be able to enjoy their right to missed visits immediately. The most appropriate thing is, in the lawyer’s opinion, “to establish a new calendar including new visits that does not cause a new radical change in the habits of children.”
If what is intended is the review of a pension because the parent is affected by measures adopted in relation to the coronavirus, a justification of the temporary reasons that advise it must be attached to the demand:
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The certificate issued by SEPE showing the monthly amount received as unemployment benefits or subsidies or ERTE, in the case of employed workers.
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The document that proves the cessation of activity or decrease in income, in the case of self-employed workers.
In these cases, Nuria points out that it is not yet known whether the modification of the alimony pensions will be extended for more than three months if the reasons that motivated it continue (ERTE or dismissal) since “although I have already filed several demands we have no resolution. I want to understand that yes, although I imagine it will depend on each specific case. “
At the moment, this tool seems necessary and useful to recover custody rights, but it is not yet clear if it will be short of time.
In any case, although this summary procedure (of immediate execution) only allows the claim to be filed within three months after the end of the state of alarm, it can be claimed later through the ordinary procedure.
Photos | iStock
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