The COVID 19 state of alarm has placed serious restrictions on the movement of people within Spain resulting in a number of questions from divorced or separated parents regarding children’s visits or whether reductions can be made relating to child maintenance due to lost income.
This blog aims to provide general advice regarding the unprecedented situation. Every situation is different, so if you have a question that is not answered below please don’t hesitate to contact us for more specific advice about your own situation.
Can I still collect by children during the ‘state of alarm’?
No specific ruling or exemption has been made regarding custody or visitation rights in the new regulations covering movement of people, therefore collection and hand over of children can be affected. Some family courts have adopted general guidelines in order to avoid conflicts between parents which means that the guidelines adopted by a court can be different for each court in Spain. Despite the differences, all the guidelines are led by a recommendation to parents to use common sense and avoid taking disputes to court, as civil courts are currently locked down. Courts will only act in urgent cases, for instance if there was a risk of abduction or threat to a child’s health or moving a child out of Spain. Any other issues related to children, like breaching of visitation rights or claiming unpaid child maintenance will not be considered urgent and the court will not attend those matters until the state of alarm is lifted.
Last week, courts across Spain answered questions, ruled on and published guidelines and whilst not definitive, they provide a good indication of how matters will be treated.
- The State of Alarm has affected rights and duties of citizens. Among these rights, are the ones recognised in divorce/custody agreements and divorce/custody court orders. This State of Alarm is focused on protection of health and safety of the whole community. Application and enforcement of most laws have been suspended, this suspension also refers to the rights contained in court orders and agreements regarding divorce and custody.
- In the case of shared custody or sole custody parents have the right to collect and drop off children from one home to another, but the State of Alarm prohibits us leaving our home unless there is an urgent reason, or the reason to leave your home is included among the activities that can be carried out according to the law. In the law it states that assisting and caring for minors and elderly people is allowed. This is a disputed interpretation of the law, and there are different opinions with some Judges saying that “assisting and caring for children” includes the right of non custody parents to stay with the children and others judges consider that this has not been included in the law. Therefore, for some judges, collecting and returning children is currently not allowed, as it can increase the risk of infections.
- In the case that a parent cannot stay with the child or children due to this limitation, judges agree that the time that a parent is not with the children, as the custody agreement has been suspended, the time lost and spent with the custody parent has to be duly compensated once the state of alarm has ended.
- Some Judges have said that confinement and suspensión of visitation rights is not a serious issue affecting children’s rights or parent’s rights, because the loss can be compensated when the situation normalises and confinement concludes.
- In order to compensate for the time that a parent has not been able to stay with their children, both parents have to agree compensation of time after confinement. If the parents do not agree, they can wait until the courts are open and submit an application for compensation of periods not spent with the children. If the parent who had the children during confinement does not agree with compensation, the court will consider this behaviour as an abuse of right and will order him/her to pay the legal costs.
- Contact via telephone, Skype or Whatsapp has to be widely allowed by the parent who has custody, in order to facilitate communication between the children and the parent who is not with the children.
- The general recommendation is to try to agree and negotiate this difficult situation, avoiding taking conflicts to court. Mediation and lawyer’s advice are a way to sort out family matters.
I have lost my job. Do I still have to pay child maintenance?
With regards to child maintenance, if one of the parents has seen their income reduced and is not able to pay maintenance, the amounts agreed or ordered by the court still have to be paid until this situation is resolved. The court can decide about the case and issue a new maintenance order once the state of alarm is over. Parents are not allowed to reduce child maintenance unilaterally without an agreement or a new court decision.
My Lawyer in Spain are happy to assist you and answer any question you may have during this difficult situation. Please contact us at firstname.lastname@example.org