Custody and visitation recommendations

Recommendations of the Family and Probate Section of ICAM in view of the state of alarm

In view of the rules derived from Royal Decree 463/2020 which declares the state of alarm and the growing concern of the population due to the extension of the coronavirus, one of the effects raised with increasing interest is the compliance with court decisions on custody, visits and stays derived from separations, divorces and parent-child relationships.

Therefore, the Family and Inheritance Section of the Madrid Bar Association would like to offer the following recommendations:

1.- Parents must act, above all, following health rules, common sense, applying responsibility in their decisions, and always seeking the best interest of the child.

2.- Including the care of minors in the mobility exceptions (art. 7 e) in the alarm decree, judicial decisions or agreements adopted must be complied with as long as the minor is not put at risk.

3. It is encouraged and would be highly desirable that parents reach the necessary agreements for the benefit of their children, being able to change the stays established in the judicial resolutions, taking into account that the situation is one of national emergency. We recommend that such agreements be in writing or between lawyers.

4.- Agreeing on the changes of stay with each parent will also allow the other to rest and ease the routine of the children, but this should always be done in writing by any means possible, and each parent should guarantee strict compliance with all health regulations and confinement to the home, as well as the absence of the possibility of contagion or quarantine in the environment.

If no agreement is reached between the parents, and custody is judicially established as a single parent, the recommendation is that the custodial parent should maintain custody of the child, avoiding the transfer of the children and the risk of contagion.

However, the non-custodial parent shall be entitled to maintain contact during such limitation with the child, by telephone, Skype, FaceTime, or WhatsApp communication with the child, and the custodial parent shall be required to facilitate such contact.

It is proposed that those parents who see their rights of access and stay reduced can compensate for it in whole or in part once the state of alarm is over.

If this state is prolonged for more than two weeks, it is proposed to accumulate the visiting days in a continuous way for the enjoyment of the non-custodial parent, all this with the purpose of minimizing the risks in the transfers.

6.- Children whose parents consider them mature will be informed in a simple way, and always if they are twelve years old or older, of the existing situation and their opinion will be taken into account, with the warning that their opinion will be taken into account, but this does not mean that it is the children who will decide, but their parents on the basis of their well-being.

7.- We appeal from this Family Section to call on parents to be sensible, sensible and generous, and to distinguish between voluntary non-compliance - taking advantage of the national emergency - and necessary non-compliance, avoiding taking refuge in the emergency situation to retain the child and/or limit the relationship with the other parent.

8.- Remember that, in the event of symptoms of illness, you must contact the coronavirus emergency telephone number authorised by the CAM (900102112) or by the corresponding Community, do not go to the emergency room except in serious cases, and you must immediately notify the other parent as this is a matter of parental authority, both parents having the right to be with the child, without prejudice to the rules they receive from the doctors which must be complied with. If there are other children, again the parents are called upon to share the responsibilities with the minors.

9.- The impossibility of guaranteeing adequate confinement for the health of the children or of the cohabitants (shared housing or rooms, cohabitation with people at risk, etc.), should lead the parent who suffers it to voluntarily and temporarily renounce custody of the children while this situation lasts. Likewise, those parents who, for work reasons, are in contact with people at risk of contagion, such as health personnel, must put the interests of the minors and public health before the custody of the minors for the duration of this alarming situation.

10.- Parents are reminded that the current situation does not eliminate the needs of the children, so they are reminded of the need to comply with economic benefits.

Source: Illustrious Bar Association of Madrid

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Photo courtesy of and copyright Free Range Stock, www.freerangestock.com.

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