In case of separation or divorce, determining with whom the minor children should live with (known as guardianship and custody), is one of the most critical, but important, points in which we find ourselves in family proceedings.
It is not true that in case of divorce the children always stay with the mother and not with the father. This will depend on several issues, as well as the circumstances of the children and the parents.
In this sense, there are several models on how to agree with whom our children will live with, that is, different models of custody and guardianship.
- Sole custody: living with the children is attributed to one of the parents, and not always to the mother. The other parent, the one who does not live with the children every day, is known as the non-custodial parent. This parent has a visiting and communication regime with the children.
The following model is common in sole custody and guardianship: to set a day during the week to see the children (one afternoon), and to be alternate weekends, every two weeks, from Friday to Sunday. The weekends usually include sleeping with the children at the home of the parent who does not see the children every day.
When is this model common? When one of the parents, due to work issues, cannot take care of the children as well as the other parent.
- Shared custody and guardianship: In this model both parents can spend equal time with the children. This means that the division of time with the children will be 50/50%-50%, as a general rule.
Being half the time with the children means that one week I am with them and the other week I am not. That is to say: I am with them from Sunday to Sunday or Monday to Monday, and the following week I do not see them, unless it is agreed, the week I do not have to see them, to spend a weekday afternoon with them.
Broadly speaking, these two types of guardianship and custody are the most common that we can find. There are other types of guardianship and custody such as, for example: “split or distributive guardianship and custody” or “guardianship and custody exercised by a third party”, but they are not so frequent.
Choosing one custody model or another will depend on which one benefits your children the most, but it is not true that, in case of divorce or separation, the children will always live with the mother.
Anna Nicolàs Torán
Lawyer Expert in Family Law
Martinez & Caballero Abogados
