Civil Law

Separation with children: rights and legal steps you should know

Separating and have children? We explain custody, parental responsibility, child maintenance and use of the home step by step. BBM Abogados, Santander.

By BBM Abogados · · 8 min read

Key points

  • In any separation or divorce with children, Spanish law always prioritises the best interests of the child above the wishes of the parents.
  • Parental responsibility is almost always kept shared, although care and custody may be shared or awarded to just one of the parents.
  • Child maintenance and the use of the family home are set according to the children's needs and each parent's financial capacity.
  • The route of mutual agreement through a settlement agreement is faster, cheaper and less damaging than the contentious route.

This article is for general information only and does not constitute legal advice. Every situation requires individual analysis: to assess your specific case, get in touch with us.

Separating when there are children involved is probably one of the most difficult decisions you will face. On top of the emotional burden comes the legal uncertainty: who do the children stay with? how much will I have to pay? who keeps the house?. These are legitimate questions and it is worth answering them with rigorous information, because the decisions taken now will shape your family’s life for years.

At BBM Abogados we have been supporting families in Santander and throughout Cantabria in separation and divorce processes since 1990. In this article we explain, step by step, what rights you have and what decisions you will have to make when you separate and have children.

The principle that governs everything: the best interests of the child

Before talking about custody or maintenance, you need to understand a central idea: in Spain no decision about the children is taken based on what the parents want, but on what is most suitable for the children. It is what the law calls the best interests of the child.

This principle, set out in the Civil Code and in the Organic Law on the Legal Protection of Minors, means that the judge will always assess which option best protects the stability, education, health and emotional development of your children. Agreements between parents are valid and highly advisable, but they are only approved if they do not harm the children. Being clear about this from the start will help you frame your requests realistically.

Parental responsibility and care and custody: they are not the same

It is one of the concepts that causes the most confusion, so it is worth distinguishing them clearly.

Parental responsibility is the set of rights and duties you have over your minor children: deciding on their education, their health, their place of residence, managing their assets, representing them legally. In the vast majority of separations, parental responsibility remains shared between both parents, even if they do not live together. It is only removed in very serious situations (abuse, abandonment).

Care and custody, on the other hand, refers to daily life together: who the children live with, who takes care of the day-to-day. This can indeed be split up in different ways.

The fact that parental responsibility is shared means that important decisions (changing school, a significant medical intervention, moving city) must be taken by common agreement, even if only one of the parents has daily custody.

Types of custody: sole and shared

There are two broad models of care and custody:

Sole or exclusive custody. The children live habitually with one of the parents (the custodial parent) and the other has a contact arrangement, which usually includes alternate weekends, one or two afternoons during the week and an equal split of the school holidays.

Shared custody. The children live with both parents in alternating periods (by weeks, fortnights or whatever system is agreed), sharing time and responsibilities in a balanced way.

For years shared custody was granted exceptionally, but the criterion has changed. The Supreme Court has established that shared custody should be regarded as the normal and desirable arrangement whenever it is compatible with the child’s interests. That does not mean it is granted automatically: the judge assesses the parents’ capacity for dialogue, each one’s availability, the proximity of their homes, the children’s age and the child’s wishes when they are mature enough to express them.

Choosing the model suited to your situation is one of the most delicate decisions in the process. If you have doubts about which arrangement best fits your case, our family lawyers in Santander can guide you.

BBM
“At BBM Abogados we defend the interests of individuals and businesses in Santander and Cantabria with a close, rigorous and fully transparent approach. If you have doubts about your case, we help you see it clearly.”
BBM Abogados , lawyers in Santander since 1990

Child maintenance: what it covers and how it is calculated

Child maintenance is the amount that the non-custodial parent (or both, in shared custody with unequal incomes) contributes to cover the children’s needs. And here it is worth clarifying something important: the obligation to support the children does not disappear with the separation; it is a duty that continues for as long as the children need it.

Maintenance covers much more than food: it includes housing, clothing, education, healthcare, leisure and, in general, everything needed for the child’s upkeep. To set the amount, two factors are taken into account:

  • The children’s needs, which vary according to their age, their health or their stage of education.
  • Each parent’s financial capacity, that is, how much each one can actually contribute.

In addition to ordinary maintenance, there are the so-called extraordinary expenses (an operation not covered by the health system, support classes, specific activities), which are usually paid 50/50 between both parents unless otherwise agreed.

A point that causes much conflict: child maintenance and contact arrangements are completely independent obligations. If the other parent does not let you see the children, you cannot stop paying; and if you do not pay, you do not lose your right to contact either. Repeated non-payment, in fact, may amount to an offence.

Use of the family home

Another of the big questions is who keeps the house. The general rule of the Civil Code is clear: the use of the family home is awarded to the minor children and to the parent they live with, normally until the children reach financial independence.

This does not mean the ownership of the property changes: whoever owns it remains the owner. What is awarded is the right of use, that is, who can live there. If the home is rented, it is decided who continues on the tenancy agreement.

In cases of shared custody the solution is more flexible, because the children live with both. Here the judge usually assesses which parent has the greater need and fewer resources to obtain another home, and frequently limits that use to a set period to rebalance the situation.

Settlement agreement or contentious route: the two ways to separate

At this point, you have to decide how the separation is processed. There are two paths:

Mutual agreement through a settlement agreement

This is the advisable route whenever it is possible. Both parents agree on all aspects (custody, contact, maintenance, home, division of assets) in a document called a settlement agreement, which is submitted to the judge for approval. It is faster, much cheaper and, above all, less damaging for the children, because it avoids confrontation and allows a cordial relationship to be maintained going forward.

Contentious route

When there is no agreement, one of the parents files a claim and it is the judge who, after hearing both parties and assessing the evidence, decides on each point. It is a longer process, more costly emotionally and financially, and with an uncertain outcome, because the final decision lies in the hands of the court.

If you want to go deeper into the differences, we explain them in detail on our page on the forms of divorce in Santander, from amicable to contentious. Our recommendation, whenever there is a minimum of understanding, is to try for agreement: the children are the first to benefit.

Separation with young children: special care

When the children are young, there are additional considerations. With babies or very young children, especially during breastfeeding, the courts usually give significant weight to stability and to daily care, which sometimes conditions the sharing of time in the early years.

This does not close the door to shared custody, but it does mean its implementation is studied with particular care and that, at times, it is established progressively as the child grows. The essential thing is to design an arrangement that guarantees the child’s bond with both parents without abruptly disrupting their routines.

How we help you at BBM Abogados

Separating with children is a process full of important decisions that will shape the coming years of your life and that of your children. Having good advice is not a luxury: it is the best way to protect your family and to avoid mistakes that are then very hard to correct.

At BBM Abogados, a leading firm in Santander since 1990, we accompany you throughout the process: we negotiate the settlement agreement, we defend your interests through the contentious route if it is unavoidable, and we watch over the wellbeing of your children at all times. If you are thinking of separating or have already started the process, call us on 942 36 10 48 or write to us through our contact page. We will study your case and tell you, clearly and without beating about the bush, what options you have.

Frequently asked questions

What matters more in a separation with children, what the parents want or the child's interests? +

The best interests of the child always prevail. It is the guiding principle behind any court decision on custody, contact arrangements, child maintenance or use of the home. Agreements between parents are respected only if they do not harm the children, and the judge can modify them if they consider that they do not adequately protect the child.

Is shared custody the preferred option in Spain? +

The Supreme Court has established that shared custody should be regarded as the normal and desirable arrangement whenever it is compatible with the child's interests, and not an exceptional measure. That said, it is not automatic: the relationship between the parents, their availability, the proximity of their homes and the children's age are assessed in each specific case.

Can I stop paying child maintenance if I do not see my children? +

No. Child maintenance and contact arrangements are independent obligations. If one parent fails to comply with contact or hinders it, that does not entitle the other to stop paying maintenance, nor the other way round. Repeatedly failing to pay maintenance may even amount to an offence of family abandonment.

What happens to the family home when there are minor children? +

As a general rule, use of the home is awarded to the minor children and to the parent who has custody, until the children reach financial independence. In shared custody the solution is more flexible and the judge assesses which parent has the greater need, and may limit that use temporarily.

How long does it take to separate when there are children? +

It depends on the route. A divorce by mutual agreement with a settlement agreement can be resolved in a few weeks or months. The contentious route, with a claim, response and trial, usually drags on for many months or more than a year. At BBM Abogados, a firm in Santander since 1990, we advise you on choosing the most suitable route; call us on 942 36 10 48 or write to us at /contacto/.

Have a similar case?

Our team of lawyers in Santander advises you with no obligation. Tell us your situation and we will let you know how we can help.

← Back to the blog

Latest articles

Keep reading about Civil Law and other areas

¿Hablamos de tu caso?

Te atendemos con cercanía y sin compromiso.