One of the most common confusions in family proceedings in Spanish law is between the concepts of “PATRIA POTESTAD” (parental authority) and “GUARDA Y CUSTODIA” (guardianship and custody) of minor children.
Parental authority is the right and duty of parents in relation to their children. The Spanish Civil Code establishes that it shall be exercised jointly by both parents or by one of them with the consent of the other. This implies that, in cases of separation or divorce, in which joint exercise of parental authority is most commonly granted, the parents must reach an agreement when taking decisions of relevance with regard to the common children, i.e. neither parent may take decisions of a certain importance without the knowledge and consent of the other.
What are these issues of relevance? Among many others, the following:
- Change in place of residence.
- Religious practices (baptism, first communion, religious training…).
- Choices and changes of school.
- Medical treatment that the child must undergo (surgery, alternative therapies, dental or orthodontic treatment, etc.).
- Extracurricular activities.
Thus, when making this type of decision, there must be the consent of both parents, in case there is no common sense, a family judge has to take the decision on the matter or authorize one parent to take the decision solely.
On the other hand, guardianship and custody is the concept that refers to the daily care of the children, their day-to-day life and the time that each parent spends with them. Hence, there are two types of custody:
- sole custody – when only one parent spends the days with the children and the other parent has a visiting arrangement.
- shared custody – when the day-to-day care is divided equally between both parents.