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Shared custody in case of sexual abuse of the minor or domestic violence?

Article 92.7 of the Civil Code stipulates that joint custody is not applicable when either parent is involved in criminal proceedings initiated for the purpose of violating the life, physical integrity, moral liberty or liberty and sexual indemnity of the other spouse or children. Children who live with both. Neither will it proceed when the Judge notes, from the allegations of the parties and the evidence made, the existence of well-founded evidence of domestic violence.

While poor parenting relationships are not determinant for the denial of custody and joint custody, what matters is the child’s interest principle.
When there is a criminal case against a parent against the sexual indemnity of a child or violence against women, the law precludes appreciation of shared custody as beneficial to a child, since there is no communication or respect between them.

The best interest of the child implies that the child can not be forced to live in a family environment full of confrontations that do not benefit his personal development, as this represents a risk factor for the child.

The life of a minor must be developed in an environment free from violence and when there is a criminal procedure (although not firm) where there is clear evidence of a crime of sexual abuse of a minor or domestic violence, it is unthinkable Establish a system of shared custody as it would adversely affect the development of that child.

However, in spite of the clarity of the precept, in some courts (mainly of instruction) they seem to ignore as if it did not exist, the doctrine of the Supreme Court, with evident risk to the legal security of the involved ones, being this an infraction to the guardianship Judicial, effective because a Court of Instruction does not know the jurisprudence or makes little or no effort, leaving Article 92.7 of the Civil Code empty, is something intolerable in a State of Law, but that this is also seconded by the Public Prosecutor , Is unparalleled.


Sara Benjelali


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