What is the best interests of the child?
The best interests of the child is the fundamental legal principle that requires all decisions affecting a child or adolescent —whether judicial, administrative or family-related— to be made with priority given to their welfare, stability and overall development.
In Spain, it is recognised in Article 2 of Organic Law 1/1996 on the Legal Protection of Minors, and it originates from Article 3 of the 1989 United Nations Convention on the Rights of the Child.
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What does it mean in practice?
The best interests of the child is not an abstract concept: it is the criterion judges apply when deciding on child custody, visitation arrangements, child support, use of the family home and any other matter that directly affects children.
Under Spanish law, in order to determine the best interests of the child, several factors must be assessed, including:
- The protection of the child’s right to life, survival and development.
- The satisfaction of the child’s basic needs: emotional, educational, healthcare-related and material.
- The maintenance of family relationships, especially with both parents, unless this is contrary to the child’s welfare.
- The preservation of the child’s identity, culture, religion, language and social environment.
- The child’s opinion, according to their age and maturity.
- The non-separation of siblings, unless there is justified cause.
The best interests of the child in divorce
In separation and divorce proceedings, the best interests of the child is the central principle around which all decisions concerning children are structured. The judge is not bound solely by what the parents request: their duty is to adopt the solution that best protects the child.
This means that, even if both parents agree on a specific custody arrangement, the judge may refuse to approve it if they consider that it does not serve the child’s best interests.
Likewise, shared custody may be ordered even if one of the parents objects, if the judge considers it to be the most beneficial solution for the child after assessing all the circumstances of the case.
The child’s opinion
One of the elements the judge takes into account when determining the best interests of the child is the child’s own opinion, expressed through the child’s judicial hearing.
However, the child’s opinion is not binding: the judge weighs it together with the rest of the evidence and may depart from it if they consider that it does not reflect the child’s true best interests.
For a more practical explanation, you can read our article on the child’s judicial hearing and how to support the child during the process.
Limits
The best interests of the child is not absolute or unlimited. It must be balanced against other legitimate rights and interests —including those of the parents— but, in the event of conflict, the child’s interests prevail over the others.
Practical summary
| Question | Answer |
|---|---|
| What is it? | The principle that requires priority to be given to the child’s welfare, stability and overall development. |
| Where is it regulated? | In Article 2 of Organic Law 1/1996 and in the Convention on the Rights of the Child. |
| When does it apply? | In judicial, administrative and family decisions affecting minors. |
| Is it relevant in divorce proceedings? | Yes. It is the main criterion for deciding on custody, visitation, child support and the family home. |
| Does the child’s opinion determine the outcome? | No. It is assessed according to the child’s age and maturity, but it does not automatically bind the judge. |