Admits a question raised by the Supreme Court by the article of the Civil Code that prevents granting joint custody when one of the parents is involved in a criminal proceeding for abuse
The Constitutional Court appreciates the importance of the doubts raised by the Supreme Court last January in order to apply to a specific case of joint custody the precept of the Civil Code that prevent automatically this possibility when one of the parents is involved in a criminal proceedings for abuse.
For this reason, this Tuesday its plenary session agreed on Tuesday to admit this question of unconstitutionality for processing, in which the high court warned that the article 92.7 of the Code current situation, which is the one that establishes this criterion, could suppose a clash between the rights that ensure the protection of women and those that guarantee the best interests of the child.
Last June, the Constitutional Court avoided ruling on this issue due to the question of unconstitutionality raised by a judge from Jerez de la Frontera (Cádiz)which was inadmissible as it raised a “hypothetical” problem.
Yes, it has accepted the question of the Supreme Court, and for this reason the possible violation of articles 10.1 and 39 of the Constitution and other precepts of the European Convention on Human Rightsof the Charter of Fundamental Rights of the European Union of the Convention on the Rights of the Child of 1989. They question the fact that the application of the norm is automatic, without leaving the possibility for family judges to assess the circumstances concrete.
Case in Majorca
The referral of this matter to the Constitutional Court is carried out prior to the resolution of a case from Palma de Mallorca in which the joint custody of the minor had been developing with total normality and with favorable psychological reports despite the initial opposition of the mother, being ratified by the Court of Mallorca.
While this matter was being resolved, a complaint was made for a supposed physical aggression (a struggle at school over the child’s backpack) that was filed in the first instance. The Provincial Court considered, however, that the matter should go to trial, so the parent requests that article 97.2 of the Civil Code be applied and that the custody regime be withdrawn.
One of the constitutional precepts at stake in the judgment of the Supreme Court, and which will now be analyzed by the body chaired by Cándido Conde Pumpido, is article 39.4 of the Constitution, which provides that “children shall enjoy the protection provided for in international agreements that ensure for their rights”; as well as the best interest of the minor recognized by the international treaties signed by Spain and article 10.2 of our Magna Carta.
Likewise, the Supreme Court raises a possible violation of article 8 of the European Convention on Human Rights, which expressly states that there may be no interference by the public authority in the private and family life of citizens, “but as long as this interference is provided for by law.” The magistrates also request clarification regarding the right to free development of personality.
In their order, the Supreme Court magistrates recognized that the application of this norm as it is written “does not allow the court to assess the seriousness, nature or scope of the crime” that is attributed to one or both parents, nor the effect that it triggers in the relationship with the minor sons or daughters. ” It operates, on the contrary, with an imperative and automatic character, without admitting any exception -they point out-. It is even enough that either of the parents is involved in criminal proceedings, not yet prosecuted, for shared custody to be prohibited.
The suspension of visits is not automatic
The Supreme Court magistrates oppose this situation to what happens with another article of this same Civil Code, 94, on suspension of visits to parents accused of abuse, whose constitutionality was already resolved last September by the Constitutional itself in response to a Vox appeal. The guarantee court dismissed this appeal and endorsed the rule, although in doing so it took into account that this second precept does not automatically deprive the parent of the visitation regime, since it allows the judicial authority to assess and adopt a decision about.
Faced with what happens with visits, what the law says regarding joint custody creates doubts in the Supreme Court because “the interest of the minor is subordinated or postponed” in this case “without the possibility of any alternative evaluation or specific treatment”.