Family Law. The amendment of article 94 of the Spanish Civil Code and the "automatic" suspension of the non-custodial parent visiting regime
On June 3, 2021, Law 8/2021, of June 2, was published in the BOE, which reforms civil and procedural legislation to support people with disabilities in the exercise of their legal capacity and, among other issues, said law has amended article 94 of the Civil Code, the previous wording of which was as follows:
“The parent who does not have minor child or disabled children with them will have the right to visit them, communicate with them and have them in their company. The Judge will determine the time, manner and place of the exercise of this right, which may limit or suspend if serious circumstances arise that advise it or the duties imposed by the judicial resolution are seriously or repeatedly breached. (…) ”.
With this old wording, we observe that the parent who did not have the custody of the children may interact with them through visits and communications, but the judge may limit or suspend those rights of visits and communications if serious circumstances arise that thus they advise it, or the duties imposed by the judicial resolution are seriously or repeatedly breached.
On September 3, 2021, the new and controversial wording of article 94 came into force, of which we highlight the fourth paragraph, which is as follows:
“The establishment of a visitation or stay regime will not proceed, and if it exists, it will be suspended, with respect to the parent who is involved in a criminal process initiated for threatening life, physical integrity, liberty, moral integrity or liberty and sexual indemnity of the other spouse or their children. Nor will it proceed when the judicial authority notices, from the allegations of the parties and the evidence practiced, the existence of well-founded indications of domestic or gender violence. However, the judicial authority may establish a regime of visit, communication or stay in resolution motivated in the best interests of the minor child or in the will, wishes and preferences of the elderly with a disability in need of support and after evaluating the situation of the parent-child relationship.”.
By breaking down the text of this fourth paragraph, the following considerations are revealed:
1) “The establishment of a visit or stay regime will not proceed, and if it exists, it will be suspended, with respect to the parent who is involved in a criminal process initiated for attempting against life, physical integrity, liberty, moral integrity or the sexual freedom and indemnity of the other spouse or their children”.
We see that it is a legal mandate, which is imperative, being that, from now on, "automatically" in the cases that are listed in this section will not proceed to establish a visit or stay regime, and if it exists, it will be suspend, without the judge having the power to decide whether or not to agree on a visitation regime or to suspend or not the one that has already been agreed.
2) "Nor will it proceed when the judicial authority notices, from the allegations of the parties and the evidence practiced, the existence of well-founded indications of domestic or gender violence."
In other words, the existence of a criminal procedure, not even the filing of a criminal complaint, will not be necessary for a parent to be deprived of their visitation regime, it being sufficient for the judicial authority to "notice" the existence of well-founded indications of domestic or gender violence.
3) “However, the judicial authority may establish a regime of visit, communication or stay in a reasoned resolution in the best interest of the minor child or in the will, wishes and preferences of the elderly with a disability in need of support and after evaluating the situation of the parent-child relationship”.
As a counterweight to the previous measures, the possibility that the judge can establish a visitation regime in these cases is introduced, but with two conditions, which motivates his decision, and after evaluating the situation of the parent-child relationship, which may be carried out within the divorce procedure or filial parental measures, either through the judicial examination of the minor child by the judge and the Public Prosecutor's Office, or through the corresponding psychosocial reports issued by the technical teams attached to the courts.
With these conditions, the legislator intends that the power of the judge to establish a visiting regime is an exceptional possibility.
To avoid the abusive use of this rule, we hope that the exception established in article 94 regarding the power of the judge to allow visits, will be applied whenever necessary, with all the guarantees, in the interest of the minor child and especially when not there is risk for the children. Otherwise, we could find minors children who do not have visits with one of the parents during the unpredictable duration of the criminal process, which could easily be up to two years, which can cause the minor child a greater damage than the maintenance of the visits.
From Legal Steps, we remain at your disposal, for any advice related to Family Law.
Lorenzo Vílchez Vílchez
LawyerCivil law, Criminal law, Real Estate law, Consumer law & Family law
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