Shared custody law in Spain (custodia compartida): what the rules say in 2026

No — Spain has no statutory presumption of shared custody and no default model. Under the Código Civil the court orders shared exercise of guarda y custodia when both parents ask for it (art. 92.5). Where only one parent asks, art. 92.8 still begins with the word excepcionalmente — "exceptionally" — and lets the court order it on a report of the Public Prosecutor, reasoning that only this adequately protects the child's best interest. Where the parents live apart and do not agree, the court decides which parent the minor children will be in the care of, always for the children's benefit (art. 159).

Which law applies depends on where the family lives. Aragón, Cataluña, Navarra and the País Vasco apply their own civil law instead of the Código Civil, each with its own statutory criteria; the rest of Spain applies the Code, and so does the Comunitat Valenciana, whose shared-custody law was annulled in 2016. The custody articles have not moved lately — arts. 92 and 94 were last amended in 2021 and 2022 — but since 3 April 2025 parents must attempt an out-of-court settlement before filing.

What Spanish law says about custody

Spanish law keeps two things apart. Patria potestad is parental authority — art. 154 of the Código Civil calls it responsabilidad parental — and among its duties is deciding the child's habitual residence, which may only change with both parents' consent or by judicial authorisation. It is exercised jointly and separation does not end it; where the parents disagree, either may go to court, which gives the power to decide to one of them (art. 156).

Guarda y custodia — care and custody — is the day-to-day question, governed by art. 92. Shared exercise is ordered where both parents request it (art. 92.5). At one parent's request the court may still order it "exceptionally", on the Public Prosecutor's report, reasoning that only this protects the child's best interest adequately (art. 92.8). That report used to have to be favourable; the Constitutional Court struck the word out in 2012, so it is required but need not agree. In every case the court must obtain it, hear children with sufficient judgment where that is necessary, and weigh the relationship the parents keep with each other and with their children (art. 92.6); it may also commission expert reports.

Two bars matter. Joint care is not granted where either parent is subject to criminal proceedings begun for an attempt on the life, integrity, liberty or sexual freedom of the other parent or of the children living with them — nor where the court finds founded indications of domestic or gender violence, with no criminal process needed. For contact, art. 94 lets the court set the time, manner and place of visits by the parent who does not have the children, and limit or suspend them; no regime is set — and an existing one suspended — for a parent in those same situations.

Most families never reach that point: the parents' own convenio regulador must state the care of the children, the exercise of patria potestad and the regime of communication and stays with the other parent; the court approves it unless it is harmful to the children.

Sources: [1], [9]

How courts decide, and why the region matters

Under the Código Civil there is no numbered list of criteria. The frame is the one above: a joint request produces shared custody unless the agreement is harmful to the children; a single parent's request goes through art. 92.8; and in every case the Prosecutor reports and the child is heard where that is thought necessary. On top of that sit the violence bars and the protective measures of art. 158, which let the court suspend patria potestad, custody or contact of its own motion to remove a child from danger.

Where regional civil law applies, the criteria are in the statute — and they differ:

• Cataluña. Parental responsibilities keep their shared character after separation and must be exercised jointly as far as possible, and each spouse must file a plan de parentalidad. Absent an agreement the court decides how guarda is exercised, and may order it individually where that suits the child. Guarda may not be given, and contact must be suspended, where there are founded indications of family or gender violence.
• País Vasco. The strongest pro-shared wording in force anywhere in Spain, and it is regional: the court adopts shared custody at a party's request unless it is harmful to the children, and one parent's opposition or a bad relationship is expressly not a sufficient reason to refuse.
• Aragón. Shared custody used to be preferred here; since Ley 6/2019 art. 80.2 has the court adopt shared or individual custody according to the child's interest, on the plan de relaciones familiares each parent files.
• Navarra. Under Ley 71 of the Fuero Nuevo the court orders the form of care most suitable to each child's specific interest, shared or individual.

One region is often listed in error: the Comunitat Valenciana's Ley 5/2011 was declared unconstitutional and void in full in 2016, so Valencian families come under the Código Civil.

Sources: [1], [10], [12], [13], [14], [15]

Shared care in practice: how common, and what it costs

How common is it? The Instituto Nacional de Estadística counted 86,595 separation and divorce cases in 2024. In 50.8 % of divorces between spouses of different sex there were minor children whose custody had to be awarded, and within that group it was shared in 49.7 % of cases, given to the mother in 46.6 % and to the father in 3.4 %. Read the denominator carefully: the 49.7 % is a share of those divorces with children, not of all divorces or all separated parents.

No official statistic was found for the shape of shared custody — weekly, fortnightly or shorter blocks — so the pattern is decided case by case. Our alternating weeks and 50/50 guides lay the usual rhythms out on a calendar; shared custody terms worldwide sets the Spanish words beside their equivalents.

Money. Shared custody does not remove child support. Art. 93 has the court determine each parent's contribution in every case and keep those payments effective and adjusted. There is no statutory formula: the Consejo General del Poder Judicial publishes non-binding guidance tables, and on 27 September 2026 the CGPJ page hosting them said it was under revision and showed no data. Catalan law puts the principle plainly: the form of guarda does not change the maintenance obligation, though the time each parent spends with the child and the expenses they pay directly are weighed.

Before you file. Since 3 April 2025 a prior attempt at an out-of-court settlement — a medio adecuado de solución de controversias (MASC) — is an admissibility requirement for civil claims, and that includes the proceedings where separation, divorce and custody sit. Mediation, conciliation, a neutral expert opinion or a documented lawyer-to-lawyer negotiation all qualify. Protective measures under art. 158 and filiación claims are excluded.

Sources: [1], [11], [12], [16]

Spanish custody terms, in plain English

Spanish term	What it means
patria potestad	Parental authority, which art. 154 expressly calls responsabilidad parental: the duties and powers over a child, including deciding the habitual residence. Normally exercised jointly, and it survives separation.
guarda y custodia	Care and custody: day-to-day care and where the child lives (arts. 90, 92, 94). Not "guardianship", which in English means something else.
custodia compartida	Shared custody. The statute says ejercicio compartido de la guarda y custodia (art. 92.5) and guarda conjunta (art. 92.7); all three mean the same.
régimen de visitas	The art. 94 contact regime — visiting, communicating with and having the child in one's company, overnight stays included. "Visitation" alone undersells it.
convenio regulador	The parents' written agreement on the consequences of the separation, approved by the court unless harmful to the children (art. 90). Cataluña additionally requires a plan de parentalidad.
pensión de alimentos	Child maintenance: the contribution the court fixes for each parent under art. 93. More words in the custody glossary.

Sources: [1], [12]

Recent changes

• 5 May 2026 Draft taken in first reading only — not law

  Draft reform of the child-protection law (LOPIVI)

  The Council of Ministers took a draft organic law amending LO 8/2021 in first reading only, the step at which it decides on further consultations and reports. It would have children heard in every proceeding affecting them whatever their age, require decisions to justify expressly how the child's best interest was assessed, add removal from a person who is violent towards the child as a best-interest criterion, and ban "parental alienation syndrome" reports. It contains nothing about shared custody or suspending contact, and at 27 September 2026 there is no published text and no parliamentary dossier.

  Official source: La Moncloa — Council of Ministers reference, 5 May 2026

• 3 April 2025 In force

  An out-of-court attempt is now required before filing

  LO 1/2025 art. 5 makes a prior attempt at an out-of-court settlement (MASC) an admissibility requirement for civil claims, including the proceedings where separation, divorce and custody sit. The exclusions cover art. 158 protective measures and filiación claims, not custody.

  Official source: BOE — Ley Orgánica 1/2025

Frequently asked questions

Sources