Child Custody Laws in Spain 2025: Shared Custody Guide for Expats

Navigating child custody laws during a divorce or separation in Spain is challenging for expat parents. Understanding your rights, the court process, and how Spanish law approaches custody decisions is essential for protecting your relationship with your children.

This comprehensive guide explains everything expats need to know about child custody laws in Spain, from shared custody arrangements to international custody issues, evaluation processes, and parental rights.

Spanish Custody Law Overview: Shared Custody as Default

Since 2013, shared custody (custodia compartida) is now the default arrangement in Spain. This represents a departure from older systems that often favored sole custody with one parent.

Spanish courts now presume that children benefit most from maintaining strong relationships with both parents after separation or divorce. The governing principle is the best interest of the child (interés superior del menor). Courts prioritize the child's emotional, physical, and developmental needs above parental preferences. Both parents are legally recognized as having equal rights and responsibilities, regardless of gender.

What "Shared Custody" Actually Means in Spain

Understanding shared custody requires distinguishing between two important concepts:

Physical custody (custodia física) refers to where the child lives and which parent provides day-to-day care. In shared arrangements, children split time between both parents' homes according to an agreed or court-ordered schedule.

Legal custody (patria potestad) refers to authority to make major decisions about the child's upbringing, including education, healthcare, religion, and travel. In Spain, both parents typically retain legal custody even when physical custody is shared.

Common Shared Custody Schedules

Spanish courts approve various time-sharing arrangements based on the child's age, parents' work schedules, and proximity:

• Week-on/week-off: Children alternate full weeks with each parent
• 2-5-5-2 schedule: A rotating schedule ensuring both parents have weekdays and weekends
• 3-4-4-3 schedule: Children spend 3 days with one parent, 4 with the other, then switch
• School year/holiday split: One parent has primary custody during school year while the other has extended summer periods (less common)

The specific schedule is detailed in the custody agreement (convenio regulador) submitted to family court.

When Courts Award Sole Custody Instead

While shared custody is the default, Spanish courts award sole custody (custodia exclusiva) when evidence shows shared arrangements would harm the child:

Domestic violence: Any documented abuse history typically results in sole custody for the non-abusive parent.

Substance abuse: Active addiction impairing parenting ability leads to sole custody for the other parent, though supervised visitation may be ordered.

Child abuse or neglect: Documented evidence of physical, emotional, or sexual abuse, or serious neglect results in sole custody and potentially supervised or no contact.

Parental alienation: Deliberately turning a child against the other parent through manipulation or false allegations can result in custody reversal.

Geographic distance: When parents live too far apart to make shared physical custody practical, courts may award sole custody with visitation rights.

Parental inability: Serious mental health issues, incarceration, or extended absence making a parent unable to provide adequate care may result in sole custody.

Sole custody doesn't eliminate the other parent's rights entirely. The non-custodial parent typically retains legal custody rights and visitation unless specifically restricted by court order.

Factors Courts Consider in Custody Determinations

When parents cannot agree, Spanish family courts evaluate numerous factors:

The child's age: Very young children may benefit from more frequent transitions, while school-age children often do better with weekly schedules providing stability.

The child's preference: Children over 12 have the right to be heard in custody proceedings, and their wishes carry significant weight.

Parents' work schedules: Courts examine each parent's work hours, flexibility, and ability to provide direct care.

Proximity to school: Maintaining educational continuity is a priority. Parents near the child's current school have an advantage.

Sibling relationships: Courts strongly prefer keeping siblings together rather than splitting them between parents.

Historical involvement: Courts examine which parent has been the primary caregiver, attended medical appointments and school meetings, and been most present in daily life.

Ability to cooperate: Courts assess whether parents can communicate respectfully about schedules, education, and health.

Living conditions: Each parent's home is evaluated for adequate space, safety, and suitability.

International Custody Issues and Cross-Border Considerations

For expat families, international custody issues add complexity:

The Hague Convention: Spain is a signatory to the 1980 Hague Convention, preventing parents from unilaterally removing children across borders. If one parent takes a child from Spain without permission, the child must generally be returned for Spanish courts to decide custody.

Preventing child abduction: After separation, courts may order that both parents must consent before children leave Spain. Parents can request that passports be held by the court or children be registered on airport watchlists.

Moving abroad after divorce: A parent with custody cannot move abroad without either the other parent's written consent or court approval. The other parent can object, and courts evaluate whether the move serves the child's best interest.

Enforcement across borders: Custody orders from Spanish courts can be enforced in other EU countries and Hague Convention countries through mutual recognition agreements.

Dual nationality children: Children with Spanish and another nationality are subject to Spanish law while residing in Spain, regardless of their other citizenship.

For international couples divorcing in Spain, consulting family lawyers specializing in international custody is essential.

The Custody Evaluation Process

When contested custody proceedings are necessary, Spanish family courts typically order a comprehensive evaluation:

Court-appointed psychologist: The family court assigns a forensic psychologist to conduct an impartial evaluation. Their report carries significant weight with judges.

The evaluation includes: Home visits to each parent's home, private child interviews, extensive parent interviews, psychological testing, and interviews with teachers, doctors, or grandparents who can provide insight into family dynamics.

Cost and timeline: Evaluations typically cost €500-€1,500, paid by one or both parents. The process takes 2-4 months, during which temporary custody arrangements remain in effect. The psychologist submits a detailed report with recommendations that judges follow in the vast majority of cases.

Parents should approach evaluations honestly, focusing on the child's needs rather than attacking the other parent.

Father's Rights in Child Custody

Modern Spanish custody law provides equal treatment of fathers and mothers. Since 2013, courts do not favor mothers over fathers.

Presumption of shared custody: Fathers start from the same legal position as mothers. Spanish courts now award shared physical custody in approximately 30-40% of divorce cases, increasing each year.

Paternity leave recognition: Spanish law provides generous paternity leave (16 weeks, equal to maternity leave). Fathers who took leave can reference this involvement in proceedings.

Financial obligations: Custody and child support are separate issues. Fathers with 50/50 custody may still owe support if there's significant income disparity.

Fighting stereotypes: While legal equality exists, some judges may hold traditional views about gender roles, particularly for very young children. However, these attitudes are declining.

Active involvement matters: Fathers actively involved in childcare, education, and medical care have the strongest cases. Documentation of this involvement strengthens custody arguments.

Mother's Rights in Child Custody

Mothers' rights in Spanish custody law are also grounded in equality rather than automatic preference.

Equal rights to fathers: Mothers no longer benefit from automatic preference, particularly for young children. While mothers who were primary caregivers may have stronger cases based on historical involvement, this is factual rather than gender-based.

No automatic preference: Spanish law eliminated the "tender years doctrine" that once favored mothers for infants and young children.

Requesting sole custody: Mothers can request sole custody but must provide substantial evidence it better serves the child's interest, such as the father's absence during marriage, incompatible work schedules, or concerning behaviors.

Breastfeeding considerations: For breastfed infants, courts may temporarily adjust custody schedules to accommodate nursing, but this is viewed as temporary rather than a basis for long-term preference.

Primary caregiver history: Mothers who can document being the primary caregiver have stronger arguments for maintaining majority physical custody, though shared custody remains the starting presumption.

Relocation Rules: Moving Within Spain or Abroad

Relocation with children after divorce is highly regulated. Spanish law strictly controls when and how a custodial parent can move.

Moving within Spain: For relocations not significantly impacting the other parent's access, courts generally allow moves with reasonable notice (30-90 days). However, moves disrupting the existing custody schedule—such as Madrid to Barcelona—require court approval if the other parent objects.

Courts consider the reason for the move, impact on the child's relationship with the non-moving parent, feasibility of maintaining existing custody schedules, the child's adjustment to their current school and community, and quality of life improvements.

Moving abroad: International relocation requires either the other parent's written consent or court approval. Having sole or primary custody doesn't give you the right to move internationally over the other parent's objection.

When a parent seeks international relocation, the other parent can file an opposition with family court. Courts evaluate whether the move serves the child's best interest, considering the reason for relocation, plans for maintaining the child's relationship with the non-moving parent (virtual contact, vacation visits), educational and quality of life benefits, and financial capacity to facilitate the child's travel back to Spain.

Courts frequently deny international relocation when it would severely diminish the child's relationship with the non-moving parent. The safest approach is negotiating relocation terms with your ex-partner before taking any steps.

Modifying Existing Custody Orders

Custody orders aren't necessarily permanent. Spanish law allows modification when circumstances change significantly.

Grounds for modification: Courts consider modifying custody when a parent's work situation changes substantially, a parent relocates within Spain, the child's needs change (entering school age, becoming a teenager, special needs), one parent's living situation changes dramatically, evidence emerges of concerning behaviors, or the existing arrangement isn't working and causing harm.

The standard: The requesting parent must demonstrate circumstances have materially changed and modification serves the child's best interest. Courts prefer stability and won't modify custody for minor inconveniences.

Process: File a petition with the same family court that issued the original order. Both parents present evidence, and the court may order a new custody evaluation. Contested proceedings generally take 4-8 months. When both parents agree, the process is simpler—submit the modified agreement to family court for routine approval.

Getting Help: Next Steps for Expat Parents

Navigating custody law in Spain during separation or divorce is challenging, particularly for expats facing language barriers and unfamiliarity with the legal system.

The most important step is hiring an experienced Spanish family lawyer who speaks English and specializes in international child custody cases. Spanish law requires legal representation in divorce and custody proceedings.

Consider mediation first: Before contested court proceedings, many families benefit from professional mediation to reach custody agreements, reducing conflict, costs, and trauma for children.

Document everything: Keep records of your involvement—attendance at school events, medical appointments, communications, and time spent together. This documentation becomes crucial evidence.

Prioritize your children's wellbeing: The most successful arrangements put children's needs ahead of parental conflict. Courts favor parents who facilitate the child's relationship with the other parent.

Understanding your rights under Spanish law empowers you to make informed decisions and protect your relationship with your children during this difficult transition.

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Find the Help You Need:

• Browse our directory of English-speaking family lawyers specializing in international custody cases
• Access mediation services to reach custody agreements outside court
• Download our complete divorce checklist for expats in Spain
• Read our guide on divorce timelines and costs in Spain

Child custody decisions shape your children's lives and your relationship with them for years to come. Taking the time to understand Spanish custody law and working with qualified professionals ensures the best possible outcome for your family.