BGI Spain - Visiting arrangements and Alarm Status. Recormmendations

The exceptional situation that Spain and the rest of the world are experiencing right now is changing the lives of all people in all areas. There are numerous queries that we receive from legal professionals regarding compliance with the visitation regime or shared custody in this health crisis situation.

Well, it should be noted that both parents must ensure the interest of the child and, as far as possible, for compliance with the judicial decisions that govern the custody and visitation regime in each case.

María Dolores Lozano, president of the Spanish Association of Family Lawyers, stresses that “if the resolution in force is impossible to comply with under extraordinary circumstances, because a risk to the children is objective, the parents can agree to any change temporarily without the need for judicial approval”. However, the state of alarm does not allow a custodial parent to unilaterally alter the visitation regime established in a judicial resolution except for serious and exceptional reasons that must be proven.

The approval of Royal Decree 463/2020 of the 14th of March, declaring the state of alarm for the management of the health crisis situation caused by COVID-19 establishes in its article 7 limitations on the freedom of movement of persons, which does not affect -in general- the validity and execution of the shared custody or visitation regime. However, gradually the Family Guard Court of the different judicial parties will dictate contradictory resolutions in this regard, making different interpretations.

Therefore, our team of experts in Family Law offers the following recommendations:

• First, the interest of the minor must prevail, and act following common sense, applying responsibility, and complying with sanitary regulations.
• One of the mobility exceptions included in article 7 of Royal Decree 463/2020 is the care of minors, therefore, judicial resolutions and agreements between parents must be observed.
• Taking into consideration that we are facing an exceptional situation, exceptional measures can be agreed, this means that it is desirable that the parents reach agreements for the benefit of their sons and daughters and thus agree to change days of visits or stays. For example, grouping the days of visits and putting them together at the weekend, or agreeing to spend entire weeks with each parent, in order to make as few trips as possible. All the agreements reached by the parents we recommend that they are written between the lawyers of each party.
  • In cases where it is impossible to reach an agreement, an expert in Family Law should be consulted, so that through the mechanisms that exist, the necessary emergency measures are taken to ensure the interest of the minor.
• The non-custodial parent shall have the right to maintain daily contact with the minor through all the existing means of communication, the custodial parent being obliged and facilitating this.
• Appealing to common sense, if either parent suffers symptoms, or for work reasons they are in constant contact with people at risk, they can voluntarily and temporarily relinquish custody of the minors for the duration of the situation. Being able to compensate the days that the minors could not enjoy once the alarm state ended.
• The state of alarm does not exempt the obligation to pay alimony and / or compensatory pension.

From Balms Abogados we are at your disposal to answer any questions in this extraordinary and exceptional situation that we have to live.