Parental responsibility
Parental responsibility covers the rights and duties that both parents have towards their children, and the arrangements that must be put in place when they separate: who the children live with, how they spend time with each parent, child support and the use of the family home. Under Spanish law these arrangements apply equally whether or not the parents were ever married.
They apply to children under 18 and, in certain cases, to adult children who are still financially dependent on their parents. And they give both parents the same rights and the same obligations, regardless of which of them the children live with.
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These are the terms you will come across, and what each of them means:
Parental authority (patria potestad)
Known in Spain as patria potestad, this is the set of rights and duties that both parents have towards their children from birth: caring for them, supporting them, educating them and guiding them, as well as taking the important decisions about their wellbeing and their future.
Those decisions include matters such as the child’s place of residence, schooling, healthcare, religious upbringing and other key aspects of their development. It normally remains shared after a separation, whichever parent the children live with — so these decisions still have to be taken by both.
Child custody: sole or shared
Custody, in Spain guarda y custodia, refers to the day-to-day care, upbringing and wellbeing of the children: taking them to and from school, attending medical appointments, helping with homework, and giving them emotional and practical support in their daily lives. It is not the same as parental authority: a parent who does not have custody keeps the right to take part in the important decisions.
Custody may be shared between both parents or granted to one of them alone. Where it is sole, the children live mainly with one parent and the other is normally granted a contact arrangement, so that the relationship remains stable and continuous. When deciding, the court looks at the best interests of the children, and this is the decision that shapes everything else: child support, the family home and the whole organisation of family life.
Contact arrangements
The contact arrangement sets out when the children spend time with each parent, and how that time is organised: weekdays, weekends, handovers and communication in between. What it looks like depends on whether custody is shared or sole, but its purpose is the same in both cases — that the children keep a stable, healthy and continuous relationship with both parents.
Holiday periods are usually divided separately: Christmas, Easter, school breaks and the summer holidays, always weighed against the best interests of the children and the family’s circumstances. A good arrangement is one built around the children’s ages and routines rather than the adults’ convenience, and one that leaves little room for interpretation: most later disputes come from vague wording.
Child support (pensión de alimentos)
Child support is the financial contribution towards the care and wellbeing of the children. It covers their essential costs: housing, food, education, clothing, healthcare and everyday needs. It is paid whichever custody model applies — shared custody does not automatically mean that nobody pays.
The amount and the way it is paid depend on the custody model, the children’s needs and each parent’s financial circumstances. The arrangement should also set out how extraordinary expenses are shared, and it is worth defining clearly what counts as one: that single point prevents a great many later disagreements.
Use of the family home
Where custody is sole, the use of the family home is generally granted to the children and the parent they live with, so as to give continuity to their daily lives. This says nothing about who owns the property: use and ownership are separate questions, and the home remains the asset of whoever it belonged to.
Where custody is shared, the use of the home may be limited in time or alternated between the parents, depending on the family’s circumstances and on what has been agreed or decided by the court. It is one of the most disputed points of any separation, because it affects both parents’ finances and the children’s stability at once.
How the process works, and what you will need
The first decision: by agreement or contested?
Everything else follows from this. The two routes lead to the same set of measures — custody, contact, child support and the family home — but they differ completely in how long they take, what they cost and how much they strain the family.
Proceedings by mutual agreement
This route requires both parents to reach an understanding on the essential points:
- Custody
- The contact arrangement
- Child support
- Use of the family home
Once agreed, a settlement agreement is signed and submitted to the court for approval. Both parents then formally ratify it before the court, and a final judgment is issued. It is the faster route by a wide margin; where it does slow down, it is normally during the negotiation itself, particularly when financial matters or the winding-up of jointly owned assets have to be settled at the same time.
Contested proceedings
Where no agreement is possible, the case may run in two stages:
- Urgent interim measures, decided at an oral hearing, for situations that cannot wait
- The main proceedings, in which the final measures are determined
The main proceedings involve a fuller evidentiary stage, which may include financial disclosure, witness evidence or a report from the court-appointed psychosocial team. That lengthens the case, but those assessments are often decisive in establishing what is in the best interests of the children. How long it takes varies with the court and the complexity of the evidence, and is always considerably longer than proceedings by agreement.
Documents to bring
What is needed depends on the case, but it usually includes:
- The children’s birth certificates
- A padrón (residence) certificate, which establishes which court has jurisdiction
- Tax returns, payslips and proof of income for both parents
- Evidence of the children’s expenses: school, activities, healthcare
- A list of assets and liabilities: property, loans, jointly owned assets
- The settlement agreement signed by both parties, if you have already reached one
- Where documents were issued abroad, the Hague Apostille and a sworn translation into Spanish
Your family and financial situation
The measures are set on the real circumstances of the family, so the personal, financial and professional situation of each parent has to be looked at carefully. That is what determines the workable custody arrangement, the appropriate level of child support and the use of the family home.
It also matters whether you were married, registered as a domestic partnership or signed any financial agreement, and whether there are jointly owned assets or shared debts: those have to be managed, divided or wound up, and where there was a marriage, other financial measures such as spousal support may also come into play.
We help you protect your children’s stability
The arrangements agreed now will shape your children’s daily life for years to come. At Zabalgo Abogados we work with you to find balanced, workable solutions, and we tell you clearly what Spanish law allows, what it does not, and what to expect at each stage.
When your family is international
Where the parents hold different nationalities, or one of them lives outside Spain, the first question is which court may determine the measures. Within the European Union the answer lies in Regulation (EU) 2019/1111, Brussels II ter, which attaches jurisdiction over parental responsibility to the habitual residence of the child. Child support — maintenance, in the language of the Regulation — is governed separately by Regulation (EC) 4/2009, and outside the Union the 1996 and 2007 Hague Conventions apply.
Two consequences are worth knowing in advance. First, a Spanish maintenance decision is enforced in most Member States without any exequatur procedure, which makes cross-border recovery considerably more straightforward than most people expect. Second, moving a child abroad without the other parent’s consent or judicial authorisation may amount to international child abduction — one of the most serious mistakes a parent can make, and one that is very often made in good faith.