This article talks about the consequences of COVID-19 measures’ on child/ren’s joint custody and visiting rights of separated or divorced couples.
COVID-19 and family law warning
Family law is not an area of my expertise. However, I think it is useful to try to explain briefly how the emergency estate affects to such a sensitive matter as child/ren of separated or divorced couples.
The most important things about COIVD-19 and children of separated or divorced couples are:
- The child/ren best interests is the paramount as usual. But much more in these days. Courts all over the globe agree on that as you can see here for example.
- Joint custody and visiting rights are set or approved by a court ruling. And rulings must be complied with always. The opposite could be even a criminal offence. This is the general rule.
- And please, common sense. Even more during these days.
So which are the consequences of COVID-19 on the children of separated or divorced couples?
The general rule is the compliance of the ruling where custody and visiting rights are set. In cases of noncompliance the court could enforce to comply. These is the position of the Spanish courts’ governing body. But they say that each judge will have to assess every single case brought into its consideration. And they also say that each regional courts’ governing body can agree some recommendations on the interpretation of the emergency estate regulation considering its final aim which is avoiding the virus’ spreading.
But obviously the COVID-19 measures taken by the Spanish government have a strong impact on joint custody and visiting rights’ rulings compliance.
First of all there is a limitation about being and using the public spaces and roads. You can do to go back and forth to your main residence. You must go on your own unless you go along with minors, disabled or dependants.
In some cases complying with the ruling will become very difficult or even impossible. In the case that one of the parents or the child/ren got the COVID-19 virus it is obvious that they will have to be isolated for the sake of their life and the ruling will be on hold until full and safe recovery. Also, if one of the parents is locked up in another country and cannot return to Spain it is obvious that the ruling cannot be complied with either. These are clear situations but what about all the other ones?
If the parents wish to modify the ruling during these exceptional circumstances they can do in several different ways.
How to modify the child/ren custody or visiting rights of separated or divorced couples?
Firstly. By mutual agreement. This is the best way to go.
Secondly. Mediation is strongly advisable in these cases if possible.
Lastly. The court that set or approved the ruling can modify it. Consider that these days only the emergency issues will be dealt with at court. Real emergencies. The court will assess the emergency level.
So what is the current situation then?
It depends. Some regions have instructions to comply with all the rulings and some others have instructions in a different way. Besides, each judge will assess each specific situation they have to decided on individually so the rulings can be very different from case to case.
I will explain briefly which are the rules in the South Alicante area (Orihuela and Torrevieja courts). These are as follows:
- Joint custody cases: comply with the ruling.
- Visiting rights: on hold. The reason for this is the main residence of the minor. In cases of joint custody both parents’ domiciles are the child/ren main residence. In cases of one the parent having just visiting rights only the other parent is the child/ren main residence. And the minor cannot come and go to anywhere else than to their main residence. So they cannot go to the parent’s house with only visiting rights as the child/ren cannot go there.
- Communication rights. During these days they should be broader and much more flexible in order to allow the parent who cannot be as usual with her or his child/ren to contact them by any mean. Video calls are a very useful solution and they are available to almost everybody nowadays.
Very practical tip
If in compliance of your ruling you come and go with your child/ren on the street it is highly recommended to have with you a copy of the ruling just in case the police asks you about your moves. So, if you have agreed any modification of the ruling during these days with the other parent it would be advisable as well to have this in writing. It will help if your moves do not match the original ruling. An email between the parents should suffice for these purposes as the police will be able to check if they wish.
These exceptional days might lead to exceptional custody and visiting rights compliance situations for sure.
The best advice I can and that I must give is to consult an expert family lawyer if you have any queries. They will analyse your case specifically and will provide with the best advice in these circumstances for your child/ren and for yourselves.
In these situations, is when people show the best of themselves and when common sense is the most sensitive rule.
Thank you for your time and attention and I hope this information is of use. You are very welcome to share if you liked it.
You could be interested in this other post about mortgage, loans and rent during COVID-19.
Please, note that this is general information. This is not specific legal advice. It is advisable to seek legal advice for any specific legal issue.