Parental Authority and Child Custody in Spain: Key Differences

Updated in August 2025 with the latest legislation and case law on parental authority and child custody in Spain

Comparative table: parental authority vs child custody

 

It is common for people to confuse, or not fully understand, the difference between the legal concept of parental authority and the concept of child custody. In this article, we explain the differences between the two.

Every day, many married couples and unmarried partners decide to end their relationship and begin living separate lives. It is at this point that a family lawyer may become involved, dealing with very different cases and situations.

However, despite this variety, the consequences that these decisions may have for minor children, where there are any, must never be overlooked.

In fact, many people who come to a family law firm confuse two key concepts: parental authority and child custody. It is therefore important to understand what each of them means in order to distinguish them correctly.

These are not minor terms, because they refer to the functions that parents must carry out in relation to their children while they are minors and, in certain cases, even afterwards.

 

Parental authority

Concept

On the one hand, parental authority is both a right and a duty of parents —whether or not they are married— towards their children. This concept allows them to decide jointly on the most important aspects of the child’s life, such as choosing the school, the place of residence or certain medical treatments.

For example: when the time comes to enrol a minor child in school, the consent and approval of both parents will be required in order to enrol the child in a specific school. Why? Because parental authority is always shared, except in very exceptional cases.

Therefore, the father or mother, simply by virtue of being a parent, will have parental authority unless they are deprived of it by a court for one of the reasons established by law.

If there is no agreement between them, it will be necessary to initiate a court procedure. This may be a matrimonial proceeding —separation or divorce— or an urgent and summary voluntary jurisdiction procedure, so that the judge can decide on the disputed issue.

The judge will not necessarily decide the specific controversy itself, but will determine which of the two parents has the power to make that decision. In other words, the judge will not say “the children must go to this school”, but who should decide it: the father or the mother.

Legal regulation

All of the above is mainly regulated in Articles 154 and 156 of the Spanish Civil Code.

Article 154 of the Spanish Civil Code: Non-emancipated sons and daughters are under the parental authority of their parents. Parental authority, as parental responsibility, shall always be exercised in the interests of the sons and daughters, in accordance with their personality, and with respect for their rights and their physical and mental integrity.

This function includes the following duties and powers: 1. To look after them, keep them in their company, feed them, educate them and provide them with comprehensive development. 2. To represent them and administer their property. 3. To decide the habitual residence of the minor, which may only be changed with the consent of both parents or, failing that, with judicial authorisation.

If the sons or daughters have sufficient maturity, they must always be heard before decisions affecting them are adopted, whether in contentious proceedings or by mutual agreement. In all cases, it shall be ensured that they can be heard under appropriate conditions, in an accessible and understandable way adapted to their age, maturity and circumstances.

Parents may, in the exercise of their function, request the assistance of the authorities.

Article 156 of the Spanish Civil Code: “Parental authority shall be exercised jointly by both parents or by one of them with the express or tacit consent of the other. Acts carried out by one of them in accordance with social usage and the circumstances, or in situations of urgent necessity, shall be valid. (…)

In the event of disagreement in the exercise of parental authority, either parent may apply to the judicial authority. After hearing both parents and the child if he or she has sufficient maturity and, in any event, if he or she is over twelve years of age, the judicial authority shall assign the power to decide to one of the two parents. If disagreements are repeated or if there is any other cause that seriously hinders the exercise of parental authority, it may assign it totally or partially to one parent or distribute its functions between them. This measure shall remain in force for the period set, which may not exceed two years.

In the absence, impossibility or lack of one of the parents, parental authority shall be exercised exclusively by the other. (…)

Deprivation and termination of parental authority

Now, can parents be deprived of the exercise of parental authority? And when does it come to an end?

As mentioned above, parental authority is normally exercised jointly by both parents. The consent of both is required to make important decisions about the child’s life. However, two issues should be taken into account.

1. Deprivation of parental authority

Article 170: “The father or mother may be deprived totally or partially of their authority by a judgment based on the breach of the duties inherent to it or issued in criminal or matrimonial proceedings.

The courts may, for the benefit and in the interests of the child, order the recovery of parental authority when the cause that led to the deprivation has ceased.”

In this regard, Article 160.1 of the Spanish Civil Code should also be taken into account, as it recognises the right of minor children to maintain relations with their parents even if they do not exercise parental authority, unless a court decision or a measure by the public authority provides otherwise.

2. Termination of parental authority

Termination is regulated in Article 169 of the Spanish Civil Code.

Article 169: “Parental authority ends: 1. By the death or declaration of death of the parents or the child. 2. By emancipation. 3. By the adoption of the child.”

 

Child custody

Concept

On the other hand, child custody refers to the everyday care of the children: who wakes them up, who prepares their breakfast, who takes them to school, who helps them with homework and who is responsible for their daily living arrangements.

Here we are no longer dealing with significant decisions that require the consent of both parents, but with ordinary day-to-day decisions.

For example: to decide what to give our child for breakfast, as this is a basic and everyday decision, we do not need the consent of both parents.

Legally, this figure is regulated in Article 92 of the Spanish Civil Code.

 

Differences between custody and parental authority

Parental authority includes all the rights and duties of parents in relation to their non-emancipated minor children. By contrast, child custody refers to the everyday care of the children.

As we have just seen, the content of child custody and parental authority places us before two different legal figures.

First, parental authority is usually shared, except in very exceptional cases provided for in Article 170 of the Spanish Civil Code. However, custody does not always have to be shared; in some cases, sole custody may be granted.

Therefore, in the event of a marriage or relationship breakdown, parental authority will normally be shared, whereas custody may be granted to both parents or to only one of them. The family situation and the best interests of the child will be taken into account.

Shared custody involves the most balanced possible distribution of time between the parents, so that the child can live with both of them.

For example: the father may have the child from Monday after school until the following Monday, when he drops the child off at school again. That day, the mother collects the child to begin her period of time with them.

Sole custody, by contrast, means that the child usually lives with only one parent. This does not mean that the other parent will not see their children, but that they will be entitled to visitation arrangements, which often include alternate weekends and one afternoon during the week, with or without overnight stays.

For example: the minor child remains under the custody of the mother, but spends alternate weekends with the father. In addition, the child may also spend one afternoon during the week with him, until that evening or until the following day, depending on the child’s age and family circumstances.

 

What criteria do courts follow to grant one type of custody or another?

We know that there are two main types of custody: sole and shared. But when is one or the other appropriate? What criteria are followed to establish them?

First, it should be borne in mind that parents may agree, by mutual consent, on the custody arrangement applicable to their case through the divorce settlement agreement.

The divorce settlement agreement is the document in which the parents, by mutual agreement, determine the personal arrangements that will govern their relationship with their minor children after the relationship breaks down. This avoids contentious proceedings in which the judge decides the applicable type of custody.

In this regard, Article 92.5 of the Spanish Civil Code states: “The shared exercise of custody of the children shall be agreed when the parents request it in the proposed settlement agreement or when both reach this agreement during the course of the proceedings.”

That said, if no agreement is reached, it is useful to know what criteria a court takes into account when ordering sole or shared custody.

We start from an important idea: there is no single uniform criterion. Each case must be analysed individually, taking into account the law, case law and the specific circumstances of the family.

Today, courts understand that shared custody may be the most desirable arrangement for protecting the best interests of the child, provided that the family circumstances allow it.

Article 92.8 of the Spanish Civil Code allows it to be ordered, even in certain cases where there is no agreement, provided that it is justified that only in this way are the best interests of the child adequately protected.

In addition to the best interests of the child, case law establishes a series of criteria to be taken into account:

• The statements of the minor child. If the child is 12 years old or, being younger, has sufficient maturity, they must be heard by the judge.
• Not separating full siblings, that is, children of the same father and mother.
• The age of the children.
• The time available to the parents, including working hours and work flexibility.
• The place of residence of the parents.

Another question may arise: can child custody be granted to someone who is neither the father nor the mother? The answer is yes. If sufficiently serious circumstances exist and the child’s interests so advise, custody may be granted to a third party, such as grandparents or other relatives.

For example: if both parents suffer from a serious addiction that prevents them from properly meeting even their own basic needs, the daily care required by a minor child cannot be guaranteed.

 

In summary

Parental authority refers to the set of rights and duties of parents towards their non-emancipated minor children. Child custody refers to the everyday care of the children.

In our courts, the usual arrangement is the shared exercise of parental authority. By contrast, child custody may be established as shared or sole custody in favour of one parent.

Parental authority is not freely disposable, because its exercise cannot be modified or extinguished by private will alone, but only in the cases permitted by law.

By contrast, custody of the child will be established as sole or shared custody depending on the specific circumstances of the family unit. To do so, the court will assess who has been responsible for the child’s daily care, the parents’ availability and the wishes of both parents, among other factors.

The usual arrangement is for both parents to exercise parental authority jointly. Only exceptionally may its exercise be granted exclusively to one of them.

Therefore, when a relationship breaks down, it is usual for both parents to exercise parental authority over their children jointly. However, custody of the children will depend on the characteristics of each family, and may be granted exclusively to one parent or shared between both.

 

Frequently asked questions about parental authority and custody

Can I have parental authority without having custody?

Yes. Parental authority refers to important decisions about the child’s life —education, health, residence, etc.— and does not necessarily involve daily living arrangements. Even if you do not have custody, you can continue to participate in these decisions.

What does losing parental authority involve?

Losing parental authority means no longer having the legal capacity to make significant decisions about the minor. It can only happen by court decision and in very serious cases, such as breach of duties or situations of risk for the child.

Can custody be modified?

Yes. Custody may be modified by agreement between the parents or by court judgment if family circumstances change or if required by the best interests of the child.

What is prioritised when deciding custody?

The main criterion is always the best interests of the child. Judges assess factors such as the age of the children, each parent’s availability, place of residence, the relationship with each parent and, in certain cases, the opinion of the minor.

Common myths and misconceptions

If I do not have custody, I lose parental authority → False. You can continue to make important decisions even if you do not live with your child on a daily basis.

Custody is always shared if the parents have a good relationship → Not always; it depends on the circumstances and on the child’s interests.

Sole custody means that the other parent will not see the children → False; visitation arrangements are established.

Do you have a case with international links? Discover how parental authority and custody are regulated in other countries in our comparative lawguide.