Basic legal and psychosocial aspects for obtaining shared custody of minors in divorce proceedings

Shared custody

15 / Mar

Shared custody has become an increasingly popular and desirable option in divorce proceedings, demonstrating a shift in society towards recognising the importance of both parents in the lives of minors. The aim is to balance the rights and responsibilities of both parents while facilitating a stable environment for the child’s development. The priority of parents in divorce proceedings should be the welfare of the children so that joint custody can be achieved in a process of mutual agreement.

Procedural Aspects of Shared Custody in a Divorce Process

Below is a very brief description of the legal procedure following these frameworks:

.- Filing the Application: In accordance with Article 92 of the Spanish Civil Code, one or both parents may request shared custody at the start of the separation, divorce, or annulment process. It is important to include this request with a parenting plan detailing how the minor’s needs in terms of housing, education and time with each parent will be met.

.- Judicial Evaluation: The application will be evaluated by the court, which will primarily consider the best interests of the child. According to the same Article 92, the judge will decide on custody taking into account, among other things, the reports issued by the Public Prosecutor’s Office, the allegations of the parties, and the relationships of the minors with their parents and siblings. The intervention of experts, such as psychologists or social workers, may be requested for a more detailed evaluation.

.- Agreement or Decision: The Civil Procedure Law, in its articles 770 and 777, establishes the specific procedure for cases of annulment, separation, and divorce, promoting agreement between the parties through mediation. If the parents reach an agreement on shared custody, before filing the lawsuit or even afterwards with the existing mediation team in the court, such an agreement will be reviewed by the judge and, if it is considered to meet the best interests of the child, will be approved. In the absence of agreement, the judge will make a decision based on all the evidence and testimony presented, always prioritizing the child’s well-being and needs.

Psychological Aspects of Shared Custody

From a psychological perspective, shared custody can offer significant benefits for the child and parents, provided it is handled properly and with mutual agreement between the parents. Certain psychological aspects are considered for this purpose:

.- Stability and Continuity: Shared custody allows minors to maintain a significant and ongoing relationship with both parents, which is crucial for their emotional stability and development.

 .- Reduction of Conflict: Although there may initially be challenges, proper implementation of shared custody can reduce levels of conflict between parents, as both have an active role in the child’s life.

.- Model of Cooperation: Shared custody teaches minors the importance of cooperation and conflict resolution, seeing their parents work together despite personal differences.


Shared custody is a modality that, when applied correctly and under suitable circumstances, can significantly benefit the welfare and development of minors. It is essential that parents maintain open and cooperative communication, always putting the needs of their children first. The main goal is to ensure the well-being and happiness of the minors during and after the divorce process.

It is important for parents going through this process to be advised by a lawyer who specialises in family law. This lawyer can guide them through the legal process and help them draw up a parenting plan that meets the needs of their children and the requirements of the court. Do not hesitate to contact this firm for situations like those described in this article, where both spouses are willing to give priority to the interests of the minor over any discrepancies between them.

Mª Dolores García Santos