The legal ones
September is one of the months of the year in which a greater number of separation and divorce consultations are registered. A process that directly affects minor children who may exist as a result of this relationship. But what happens to custody when there is no marriage between the parents?
In Legálitas, we explain how this procedure is regulated in the termination of cohabitation in a family relationship and what happens to alimony when the economic situation of the parent is affected by an economic crisis.
Who has custody if there is no marriage or domestic partnership?
After the termination of the relationship, the court process of parent-child measures should be used to regulate the effects that this separation will have on the children. In this way, Legálitas states that even if there is no marriage, the same criteria are procedurally applied as provided for in the Civil Procedure Law for cases of separation or divorce, without distinguishing between marital and illegitimate children.
In this sense, the Supreme Court in its decision of July 7, 2004 recognized that “when adopting the measures to be taken with regard to minor children, regardless of whether they are married or unmarried, the interest of the children, whose protection is entrusted to the judge and thus established in Article 158 of the Civil Code, authorizing the judge, ex officio, to adopt the measures provided for therein, and similarly Article 91 imposes on the judge the obligation to adopt the relevant measures in the absence of an agreement between the spouses, a principle which is applicable outside matrimonial proceedings […]”.
How is the court procedure going?
This procedure can be done in two ways. Amicably, through a procedure of mutual agreement, where the members of the couple will be the ones to provide the judge with a proposal for the measures to be agreed (regulatory agreement). Always through a judicial request for mutual consent measures, which must be directed by a lawyer and represented by a lawyer.
The other option is for it to be disputed, with the judge pronouncing the measures that will have to be applied for the care and custody of the children and the exercise of parental rights, visitation, communication and stay, maintenance and use of the family home.
Legálitas states that the regulatory agreement should include what the custody of the minors will be, the visitation regime, the granting of the use of the home, whether alimony will be established, etc.
What determines the regulatory agreement in the custody of children of an unmarried couple?
Both in the case of separation from an unmarried couple and in the case of separation or divorce from a married couple, the measures to be taken with regard to minors are exactly the same.
Any regulatory contract must establish the obligations of the father and mother in relation to the rights of their children. This includes custody, that is, who will take care of the minor, or if it is shared custody, where both parents will do it, dividing the time more or less fifty percent. The regime of visits, as well as periods of leave, will also be regulated.
Legálitas points out that it further defines parental authority as a parental responsibility that is, in principle, always shared between both parents, with very specific exceptions; and maintenance, thereby ensuring the proper maintenance of the minor. This includes expenses related to food, clothing, education and housing, which must be paid by the non-custodial parent.
However, in the case of shared custody, it is also possible to establish maintenance where one of the parents has a significant difference in income that prevents them from being able to meet the needs of the child in a solvent manner.
How is child support determined?
The best interest of the minor is based, among other things, on the right to maintenance and on the obligation of the holders of parental rights to do so in accordance with the economic circumstances and the needs of the children at all times, as established in Article 93. of The Civil Code and in proportion to the wealth or means of the one who gives them and the needs of the one who receives them, in accordance with Article 146 of the Civil Code.
That is why Legálitas reminds that regardless of the personal or professional circumstances of the parents, children have daily needs to take care of, included in maintenance and the right to communicate and be with their parents. This interest is protected in all separation or divorce proceedings and in family arrangements for unaccompanied children, so paying more or less to be left with more or fewer children is not interchangeable.
What happens if the parent falls into a bad economic situation?
It is common for one or both parents to be in a poor economic situation, which prevents them from fulfilling their obligation to support the child. In this case, the Supreme Court recently ruled that in cases of economic hardship, the normal thing will be to reduce the pension to a minimum, called the “living minimum”, which contributes to cover the most important expenses of the minor and only exceptionally, with a restrictive and suspension of the obligation can be arranged as a temporary criterion. If this happens, on the slightest presumption of income, regardless of its origin and circumstances, the situation originally assumed must be returned, even at the cost of a great sacrifice on the part of the foster parent.
Similarly, Legálitas explains that if the obligating parent’s situation is total insolvency, the custodial parent can determine that the grandparents are the ones facing maintenance.
What if the foster parent’s financial situation is affected by an economic crisis?
Even if the measures have been judicially approved in a court decision or regulatory agreement, if the economic circumstances of the foster parent change negatively due to unemployment, due to an economic crisis that forces him to look for a new job with lower income or due to the fact that it directly affects your business, there is a possibility that child support will be reduced.
For this purpose, it is necessary to amend the measures, which can be by mutual agreement, by drawing up a new regulatory agreement approved by the judge, or controversially, by submitting the corresponding request to amend these measures.
Legálitas points out that it is important to bear in mind that the measures adopted in a judicial decision in a contested procedure or in a judicial decision included in the regulatory agreement signed by mutual consent can be modified as long as there is a material change in circumstances as in the children as well as the parents, the parents who led to the initially adopted measures, as stated in Article 90.3 of the Civil Code.