We are living in an exceptional, unique time, and since we have never experienced something similar, we are responding to the doubts that arise as they arise. For example regarding the children of parents separated in times of quarantine during the state of alarm : Should custody be suspended? Can children be taken to the street to change their address?
From the Spanish Association of Divorced Parents, they denounce that the agreements are being breached, although children can go out to the street to go to the other parent’s home.
This is also confirmed by the family lawyer, Nuria Vargas González, manager of Vilches Abogados who emphatically points out that “the General Council of the Judiciary has made it clear that the state of alarm does not justify the unilateral breach of custody agreements by one of the parents. Only a judge can suspend them. “
Pick up and drop off children is allowed
This is what this family lawyer assures, who practices in Madrid but is registered in Barcelona, so she knows closely how it is acting in different parts of Spain.
As Nuria Vargas points out, “neither the validity and development of the shared custody systems, nor the visitation regime are affected by the circulation limitations in force, as long as they are done with the proper security measures” :
“Royal Decree 463/2020 indicates in article 7 that during the validity of the State of Alarm, people may only circulate on public roads, to carry out the following activities: assistance and care of the elderly, minors, people dependents, people with disabilities or especially vulnerable people ”.
Although it is not necessary, the lawyer recommends that the father who is going to deliver or pick up his children, carry a copy of the visitation agreement in case the forces of authority have to be accredited beforehand.
However, the lawyer explains to Babies and More that “since the same weekend that classes were suspended in Madrid, there have been problems with custody, when one of the members unilaterally decided to suspend the visitation regime” .
For this reason, on March 16, the Barcelona Bar Association published guidelines on how to act in custody cases . Thus they recommended:
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As a first option, reach agreements between the parents , such as that the children remain at home with the parent who has guardianship and custody. If they both have it, they can move house as long as health conditions recommend it (that is, they are not in contact with an infected family member or there are no risky people in one of the homes).
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In case of reaching an understanding to stay with one of the parents, it is necessary to promote the communication of the children with the other parent, through frequent video calls .
- If the parents have a bad relationship with each other. In those cases, it will be necessary to notify the breach officially, by burofax or certified email.
This is how the lawyer explains it to Babies and More, adding that the General Council of the Judiciary (CGPJ) also ratifies this position.
The best thing, to reach an agreement of flexibility in the visits
On Friday, March 20, the General Council of the Judiciary agreed in an extraordinary session that the visitation regime can only be suspended or altered by a judge. Therefore, says the manager of Vilches Abogados, the state of alarm does not justify its non-compliance.
This does not mean, adds the CGPJ, that parents cannot reach an agreement due to “the need to preserve the health of their children and parents.”
And for this reason, experts advise that the interests of the minor and of society prevail and that if necessary an agreement be reached between the parents to alter the visiting regimes and opt for new technologies.
This is how Nuria Vargas also manifests herself, who supports the solution of opting for video calls when the change of address is not possible, either because one of the parents lives in another city or in one of the houses there is someone at risk or someone infected.
Of course, these modifications, the expert points out, should be compensated, either by joining visiting days in a single time to try to respect the confinement as much as possible or two weeks instead of being every seven days with a parent, or after it ends the state of alarm and we can go out into the street, adding the days that have been missed from the visiting regime.
So that these modifications do not fall on deaf ears, the lawyer points out the importance of officially communicating to the other parent who is enjoying full custody, how they are going to make up the lost days.
“It must be done officially, by burofax or certified mail, because in case of having to defend the situation before a judge, a whatsapp or a normal email indicating the breach of the custody agreement does not hold.”
The Barcelona Family Courts also decided to unify criteria in this regard and support the decisions of the CGPJ that “RD 463/2020, of March 14, declaring the state of alarm does not legitimize non-compliance with judicial decisions.”
It can only be suspended in the event that one of the parents has tested positive for COVID-19, understanding that “force majeure automatically concurs, which provisionally suspends, the measures agreed in the process in which they were agreed.”
When parents are unrelated
Although it is the worst case scenario for minors, experts assure that it is happening: the state of alarm is being used as an excuse to violate the sentences and not let the children be with the other parent.
In these cases, when the relationship between the two parents is null or very bad, the injured party cannot leave the breach on deaf ears and must report it:
“First, by sending the request for non-compliance officially, as we have indicated and, if the other parent refuses to pick it up, a complaint could be filed.”
This is explained by the family lawyer, who adds that it can be processed urgently “since its processing has not been suspended in the Courts.” And he points out:
“It is very important to remind the party that is officially breaching the agreement that time will be recovered once the state of confinement due to coronavirus is overcome.”
How to act in nest house situations?
The above recommendations are also applicable when the children always live in the same family home and it is the parents who exchange for different periods of time.
The expert points out that the ideal would be to try to reach an agreement to ensure the security of the confinement: that is, to join several periods of guard and custody and, if it is not possible, to recover them once the crisis is over, facilitating communication through video calls.
“If an agreement is not reached, it would be necessary to make the official requirement of non-compliance that we have talked about.”
And also in this case:
Thus, the Council of the Judiciary leaves it up to the judges to decide in cases in which the parents do not agree , as happened in Alcorcón a week ago, where a judge suspended the visitation regime considering that “no relocation is possible “.
Photos | iStock
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