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The TC will study whether the rule that prevents shared custody when ill-treatment is investigated is constitutional

The Supreme Court argues that the norm is "clear" and does not allow "assessing" on a case-by-case basis.

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The TC will study whether the rule that prevents shared custody when ill-treatment is investigated is constitutional

The Supreme Court argues that the norm is "clear" and does not allow "assessing" on a case-by-case basis

MADRID, 7 Mar. (EUROPA PRESS) -

The Constitutional Court (TC) will study the legality of the norm that, according to the Supreme Court (TS), prohibits in a "categorical" way that shared custody is applied in cases in which one of the parents is investigated for alleged bad treatments.

As reported by the guarantee court, the Plenary has admitted for processing the question of unconstitutionality presented by the magistrates of the Civil Chamber of the Supreme Court, who argued that the challenged rule does not allow judges to "assess the seriousness" of the specific case to determine what is in the best interest of the child.

Specifically, the Supreme Court has brought before the TC article 92.7 of the Civil Code, which establishes that "joint guardianship will not proceed" when either of the parents is investigated for attempting to threaten life, physical integrity, freedom , the moral integrity or the freedom and sexual indemnity of the other spouse or of the children who live with both.

It is the second time that a court asks the Constitutional Court about this specific section of the Civil Code, although in the previous case it did not go into the merits of the matter by rejecting the question of unconstitutionality due to a problem of form.

The case now raised is that of a couple of policemen. As stated in the Supreme Court resolution, to which Europa Press has had access, the mother claimed custody of the minor before a Court of First Instance in Palma de Mallorca. In said petition, she did not allege any episode of gender-based or vicarious violence by the father against her or against the child they have in common. The man, when he answered the lawsuit, asked that joint custody be applied.

In November 2020, the court in question agreed to joint custody for alternate weeks, "all with the joint exercise of parental authority and payment of extraordinary expenses by half." But the woman then filed a complaint against the child's father for an alleged physical assault. And she, later, she took the case to the Provincial Court of La Palma, where the magistrates confirmed the resolution by which shared custody was adopted.

On the sidelines, the Women's Violence Court that received the woman's complaint for the alleged assault filed the previous proceedings that had been initiated. She filed an appeal against this decision and the Provincial Court considered that the "contradictory" statements of both the mother and the father should be "submitted" to an oral trial.

After said decision, the woman asked the Provincial Court to review the case related to shared custody and the Prosecutor's Office supported the appeal. The case eventually reached the Supreme Court, where the magistrates considered it pertinent to raise a question of unconstitutionality before the TC.

The Supreme Court emphasizes that article 92.7 of the Civil Code determines "absolutely" that "joint guardianship will not proceed when either of the parents is involved in criminal proceedings" for attempting to threaten life, physical integrity, freedom, the moral integrity or the freedom and sexual indemnity of the other spouse or of the children who live with both.

However, it emphasizes that "in the present case it turns out that the minor enjoys a shared custody regime that has been developing completely normally" since 2020.

The magistrates insist that the psychological opinion already considered "advisable" that the custody regime be applied between father, mother and child, "as the most beneficial for the interest of the child" which, according to the report, "has excellent relationships with their parents.

In addition, the Supreme Court emphasizes that in the lawsuit filed by the woman -- pending prosecution -- "at no time does the existence of a situation of gender violence become apparent." And he recalls that "the first information in this regard arises from a subsequent specific incident, derived from a discussion about the child's backpack, in the course of which, allegedly, the father hit the mother on her forearm without causing injury" .

"There is no record that the minor has suffered any negative consequences derived from said event, it is not even said that he would have contemplated it," add the Supreme Court magistrates while insisting that "there is not the slightest hint of vicarious violence."

In this sense, the Civil Chamber emphasizes that the current norm "does not allow the court to assess the seriousness, nature or scope of the crime that is attributed to one or both parents, nor the effect that it triggers in the relationship with the sons or daughters minors, nor does it contemplate their intentional or culpable nature, nor the specific concurrent circumstances that require a specific individualized treatment".

Thus, it makes them ugly that, on the contrary, it operates with an "imperative and automatic character, without admitting any exception". "It is even enough that either of the parents is involved in criminal proceedings, not yet prosecuted, for joint custody to be vetoed," they add.

The Supreme Court considers that with this, "the interest of a minor is subordinated or postponed, without the possibility of alternative assessment or any specific treatment", because, in his opinion, "other less burdensome alternative measures" fit.

For this reason, it asked the Constitutional Court to review the article in question to determine whether or not it is unconstitutional because it conflicts with the best interest of the minor. The Plenary has deemed it pertinent to address the issue.