Custodia compartida e incongruencia tras la reforma del Código Civil por la Ley 15/2005, de 8 de julio

Abstract

The present paper focuses on the contradiction between the STC 4/2001 of 15 January and the STS 400/2016 of 15 June, on joint custody cases. The first one determined the possibility to stablish joint custody ex officio, without being requested from either parent, while the second judgement has ruled that at least one of the parents must have submitted a petition, for the court to be able to make a ruling on joint custody (as required per article 92.8 of the Spanish Civil Code). This controversy will be analyzed in the light of the best interests of the child, since, at present, all minors are entitled to have their best interests assessed and considered of primordial importance, in all actions and decisions concerning them. In that regard, joint custody must also contemplate this circumstance. This paper will also analyze whether the regulation of the Spanish Civil Code respects this right, in comparison with autonomous communities’ norms and with comparative law. Considering the violation of this right in practice, possible solutions in judicial remedies are studied too. Finally, the present paper concludes it would be necessary to reform the Civil Code for that intent.