Visits, guard and custody during the Coronavirus
Seeing the current situation provoked by the Seeing the current situation provoked by the COVID-19, and after the declaration of the State of Alarm via the Real Decreto 463/2020, 14th March, in which the circulation of the population and transport has been limited, it is being questioned how the parents that have a judicial resolution that establishes a shared guard and custody or a one-parent regimen shall behave with its correspondent regimen of visits, and this, given the measures of confinement that pretend to avoid the population to go out of their houses. With the State of Alarm, shall the interchange of the children be permitted to follow the guard of the children? Should the regimen of visits be eased and still followed even though the measures of confinement?
In this respect, and previous to a response to the abovementioned questions, it is convenient to remember that we are living in an exceptional and extraordinary situation that has never happened before in our country, reason for which there are no existing judicial precedents that can be of orientation to a response in this situation that the Family Law is confronting these days.
Nonetheless, so to enlighten these problems, the vast majority of Family Courts of every judicial party have adopted an unification of criteria in relation to this Alarm State, so that the separated or divorced parents can understand which criteria shall they follow to diligently confront the current situation that we are all going through.
A) Criteria followed by the Barcelona Family Courts against COVID
The Family Courts of Barcelona and, in general, most Courts of the judicial parties of Catalonia, have indicated the following:
- Real Decreto 463/2020, of March 14, declaring the state of alarm does not legitimize non-compliance with judicial decisions, so all the custody, visits and communications systems established must be carried out and complied with in the current judicial resolutions.
- We shall start from the premise that parents must observe, in any case, the regulations of the governmental and health authorities in order to prevent the spread of the coronavirus, seeking a responsible exercise of parental authority and reaching the greatest possible agreements , always bearing in mind that we are facing an exceptional situation.
- If any of the parents presents symptoms of contagion or has tested positive in the Covid-19 test, in the interests of the minor children and understanding that this force majeure is present, the regime established by judicial resolution either shared custody or one-parent custody with its corresponding visitation regime shall be provisionally suspended, in order to prevent the spread of the virus to the minor, to the family, and to the general public.
- Likewise, to guarantee maximum contact between parents and children, the custodial parent at that time must facilitate the possibility of contact between the minors and the other parent by telephone, video calls and / or any other electronic means that allow the non-custodial parent to maintain the contact with the minor and continue to preserve the public and family health.
B) Criteria of the Courts of the Province of Madrid
The Family and Successions Section of the Ilustre Colegio de Abogados de Madrid has recommended guidelines very similar to those indicated above by the Barcelona Family Courts, but in other parts of Madrid, certain Courts follow a very different criterion.
For example, the Sectorial Board of First Instance Judges of the Judicial Party of Torrejón de Ardoz or the Courts of Alcorcón, has unified criteria very different from those established in Catalonia:
- It is considered that the transfer of minors between different addresses, as a consequence of the distribution of time in the shared custody, or for compliance with the regime of stays and contacts in the so-called one-/single-parent custody, pose a risk for both general health and the of the minors themselves, and they break the isolation measures contained in Real Decreto 463/2020, of March 14, in a very important way. For this reason, it is understood that the custody and shared custody regimes are suspended temporarily, as well as the visitation and stay regimes in the case of single-parent custodians.
- The aforementioned is indicated in this way because the transfers of minors are not considered an exception, understanding that they are not covered by any of the precepts of said Real Decreto, since article 7.1 g) regarding the fact that travel for care is allowed and care of minors understand that it is inapplicable to these cases because all minors are cared for and cared for by the parent they live with during home confinement, without the presence of the other parent being essential for this.
- Likewise, it justifies its decision by understanding that the paralysis of the transfers of minors and the consequent lack of temporary contact with the other parent does not cause irreparable harm to either the minor or the absent parent, since we are facing a temporary situation that may subsequently be remedied or repaired by compensating the time of stay lost by said parent.
- It is recognized that the absent parent has the right, and without limiting their future face-to-face contacts, to have telematic or telephone contact with their children in the periods in which they should have lived with them, and the other parent should not hinder them.
As it is seen currently, there are different criteria by the Courts depending on the locality where the minor resides, therefore, if you need more information about the criteria that we have exposed or if you want us to review if there is a protocol in the Courts of your locality, do not hesitate to contact our law firm
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¿Cómo afecta el nuevo procedimiento aprobado por el Real Decreto Ley 16/2020 de 28 de abril que regula la posible recuperación de las visitas no llevadas a cabo durante el confinamiento en el caso de que ya se haya interpuesto demanda de ejecución del Auto de medidas o de la sentencia porque la madre o el padre no entregaba a los hijos?. ¿Se tramitan los dos procedimientos de manera independiente?
Aún es pronto para valorar la práctica judicial a ese real decreto.
Salvo mejor opinión, en princpio, para la recuperación de las visitas no disfrutadas y que puedan reequlibrarse por el tiempo no disfrutado, el procedimiento idoneo debería ser el previsto en el referido real decreto, ya que en procedimiento ejecutivo, en teoria, sólo debería pronunciarse en el sentido de ejecutar o no una sentencia o resolución ya dictada.
El procedimiento ejecutivo, por el contrario, únicamente podría servir para sancionar el incumplimiento y forzarlo en caso de que el mismo no se esté desarrollando.
De todos modos, si necesitas que estudiemos con detalle tu asunto, contacta con nosotros.