What is shared custody?
From the point of view of family proceedings, custody means the daily care of minors: taking them to and collecting them from school, attending parent-teacher meetings, monitoring their schooling, going to medical check-ups, and attending to their food, clothing and all their ordinary needs. Shared custody means that these functions are divided in a balanced way between both parents, ensuring that the children maintain a continuous and stable relationship with both.
Shared custody is one of the most requested models in Spain when parents separate or divorce, as it seeks to balance the children’s living arrangements with both parents.
Contents
Requirements for shared custody
Although the Spanish Civil Code still defines it as exceptional (Art. 92.8 CC – BOE), the Supreme Court considers it the normal and desirable arrangement whenever it is beneficial for the child. Among the criteria assessed are:
- Respect between parents, even if there is no good personal relationship. In other words, both parents must maintain a cordial relationship for the benefit of their children, prioritising the children’s interests over their own personal interests.
- Involvement of both parents in care during the marriage or cohabitation.
- Work availability and family support.
- Proximity of the homes, less than 50 km apart or close to the school. The distance is merely approximate, but what is assessed is whether both parents can maintain the same environment for their children, as this affects their social relationships, birthdays, extracurricular activities, etc.
- Age and wishes of the child, depending on their maturity.
- Submission of a detailed parenting plan.
- Reports from the psychosocial team and interview with the minor.
- Express request by the parties involved.
Child support in shared custody
Under this arrangement, each parent covers the child’s expenses while the child lives with them, which are usually accommodation and maintenance expenses, unless there is a disproportion in income. In that case, the judge may set child support in favour of the parent with lower financial capacity.
In other words, the contribution to the children’s expenses is established taking into account each parent’s financial capacity.
Use of the family home in shared custody
In sole custody, the family home is assigned to the custodial parent and the children. By contrast, when there is a shared system, the Supreme Court considers that there is no longer a single family home, but two, and applies Article 96.2 of the Spanish Civil Code to decide what is appropriate in each case.
This allows time limits to be established on the use of the home —for example, one or two years—, annual alternating use of the property, or even its sale and distribution. The judge weighs factors such as ownership of the property and the financial capacity of the parents.
Key Supreme Court case law (2024–2025)
Supreme Court Judgment 947/2024, of 8 July Accepts shared custody despite physical distance, due to the availability and solvency of both parents.
Supreme Court Judgment 981/2024, of 10 July Denies shared custody in cases of evident conflict or problems affecting the child.
(…)»Well, we cannot share the criterion of the Provincial Court, insofar as it establishes a shared custody arrangement, which we consider manifestly inappropriate in view of the specific circumstances of the dispute with regard to the interests and benefit of the minors. Indeed, in this case, the following circumstances arise, which were not assessed at second instance and which determine the unsuitability of the communication arrangement established by the appealed judgment: (i) The poor relationship between both parents, which exceeds the threshold of the disagreements typical of a marital crisis, with negative interactions and an evident lack of understanding between them. A manifestation of this situation is the multiple complaints they filed against each other for abuse, disobedience and harassment, which gave rise to several criminal proceedings. The couple’s crisis remains latent and is also focused on issues relating to the children.»(…)
(ii) This situation creates an unfavourable context for establishing a shared custody arrangement, which requires intense collaboration between the parents and fluid and effective communication between them in order to coordinate the care of their children. Their educational models are antagonistic, as stated in the report of the Institute of Legal Medicine, and although in family life with the children they could, in some way, compensate for each other, in a situation involving the breakdown of the family unit, they generate uncertainty, distress and rejection by the minors in relation to the paternal model. (iii) The children’s bond with their parents is another fundamental factor to be weighed; and, in this specific respect, it must be taken into account that the relationship between the children and their father is conflictive. The minors currently do not wish to maintain contact with their parent, refuse to enjoy the visitation arrangement, allege the existence of abuse, and the forced enforcement of judicial decisions has been unsuccessful. The interview with the children, carried out by the court, makes it possible to become aware of the reality of this conflict and of the minors’ current refusal to relate to their father.
Supreme Court Judgment 1765/2025, of 21 April – Temporarily limits the use of the family home in shared custody cases.
(…)»And thus, with the aim of facilitating the transition to the new situation arising from shared custody, periods of temporary use have been established, with an assessment of the concurrent circumstances, ranging from one year (judgments 51/2016, of 11 February; 251/2016, of 13 April; 545/2016, of 16 September; 314/2022, of 20 April; 556/2022, of 11 July and 138/2023, of 31 January); two years (judgments 513/2017, of 22 September; 15/2020, of 16 January; 558/2020 and 870/2021, of 20 December and 835/2022, of 25 November); three years (judgments 465/2015, of 9 September and 294/2017, of 12 May), use on alternating annual periods (judgment 95/2018, of 20 February), or, finally, until the liquidation of the community property regime takes place (judgment 183/2017, of 14 March). In short, temporary use granted in line with an essential reasoned circumstantial assessment and attention to what has been requested by the parties»(…)
Supreme Court Judgment 3044/2024, of 28 May – Regulates the proportional distribution of child support when both parents have similar financial resources.
(…)»It is true that case law has declared, for example, in Supreme Court Judgments 338/2022, of 28 April; 607/2022, of 16 September, and 866/2022, of 9 December, that «equal stays do not exempt from the payment of child support where there is a disproportion in the income of both parents (Art. 146 of the Civil Code)»; however, in this case, such disproportion is not found, but rather the incomes are similar, even though the defendant’s income is slightly higher, but not in such a discordant amount that equal allocation would be disproportionate, especially when the claimant occasionally carries out training activities for which he obtains additional income in addition to his salary
(…)
It is true, as judgments 30/2019, of 17 January; 573/2020, of 4 November and 92/2024, of 24 January, recall, that the proportionality assessment in setting the amount of child support by the lower court must be respected, unless it is arbitrary or entirely unreasonable, which occurs in the present case, where the evidence produced is disregarded, and the Provincial Court confirms the judgment of the court of first instance, which also fails to assess the evidence in this regard, with the brief argument that: «The financial contribution in the concept of support distribution between the parents is in accordance with the principle of proportionality of Articles 145 and 146 of the Civil Code, as shared custody does not exempt from the obligation to pay support; by regulating the differences in income between one parent and the other».(…)
The judgments cited are available at https://www.poderjudicial.es. To search for them, open “Type of court” and select “Supreme Court. Civil Chamber”, and in the “Resolution No.” field enter the number indicated in each judgment. For example: 947/2024.
Frequently asked questions about shared custody
Is the time with each parent always 50%?
Not necessarily. Shared custody does not imply a mathematical 50% division of time. Its purpose is for the distribution to allow a balanced sharing of the children’s care functions, such as taking them to and collecting them from school, accompanying them to medical check-ups, organising extracurricular activities and attending to their ordinary needs.
Can it be agreed if the parents do not get along?
Yes, provided that cooperation in parenting is guaranteed. In other words, the parents must maintain a cordial relationship for the benefit of their children, prioritising their interests over their disagreements. If there is a high level of conflict caused by both parents, such as cross-complaints or claims, this arrangement may be denied, as it affects the benefit and interests of the children.
What happens if one parent wants to move?
A change of residence within the same town or city does not necessarily affect the exercise of shared custody. However, it may make it unviable if the distance prevents it from being properly exercised.
Is it possible to modify sole custody to shared custody?
Yes, if circumstances change and it is beneficial for the minors.
Key aspects to consider in shared custody
Shared custody must not conceal financial interests
Shared custody and sole custody involve very different financial measures. In sole custody, child support is established and the use of the family home is assigned to the custodial parent. In shared custody, expenses are assumed proportionally or directly during the periods of cohabitation, and the use of the home may be limited in time.
It is essential to understand that the establishment of shared custody cannot involve hidden financial requests. This arrangement should not be requested solely to avoid paying support or to recover the use of a home, nor should it be rejected out of fear of losing these financial benefits. The basis for requesting it must be the well-being of the children and continuity in their care by both parents.
The temporary allocation of the family home
As the Supreme Court has repeatedly established, in cases of shared custody there is no longer a single family home, but two. This allows courts to apply Article 96.2 of the Spanish Civil Code and establish time limits on the allocation of the use of the home.
Case law —such as judgments 593/2017, 434/2016 and 522/2016— supports the judge’s ability to weigh the circumstances and assign the use of the home until the liquidation of the community property regime, or for specific periods —one, two or three years. This time limit seeks to facilitate the transition and adaptation of the former spouses and the minors to the new family reality, ultimately allowing both parents to have a property where they can live with their children.
How we can help you
At Zabalgo Family Lawyers, we have been supporting families in child custody proceedings for more than 25 years. We know the criteria applied by the courts and work to defend the model that best responds to your children’s interests and your own.
Request a consultation with Zabalgo Family Lawyers
Paloma Zabalgo is a lawyer specialising in Family Law and President of the Family and Inheritance Law Section of the Madrid Bar Association.
