Covid-19’s impact on Spanish family law
Esther Susin Carrasco
E Susin Gabinet Juridic International, Barcelona
Government Decree RD-Law 463/2020, dated 14 March 2020, declared a State of Emergency to deal with the Covid-19 health crisis. It adopted a series of measures relating to limiting peoples’ movements, as well as constraining Spain’s social and economic activities. In the weeks since, the government has agreed different initiatives aimed at ordering the imposition of measures that have been understood as necessary to protect people from the risk of contagion, to attend to those who are especially vulnerable, to guarantee the provision of essential health and social services, as well as to look after the companies and workers affected by the economic downturn, so that they can recover to normality as soon as the pandemic is over.
The Congress of Deputies approved an extension of the state of emergency and finally RD-Law 10/2020, of 29 March (EDL 2020/7737), has further restricted the exemptions of those being able to leave their homes. Current conditions point to a further extension of the state of emergency. As almost everything that happens in society affects family law, Covid-19 and the political and public health measures adopted to fight it, have produced a series of legal problems that fully affect the field of family law.
Consequently, hearings, of provisional measures, separation and divorce procedures have been suspended. The only way in which measures relating to children can be taken is through article 158 CC, which, realistically, will encounter some problems in processing in the absence court officials, as their number has been depleted following the application of the 14 March Ministry of Justice Resolution on essential services. It is hoped that, in the absence of such measures, parents will focus on what is truly important and will act in their children’s best interests, bearing in mind that attitudes they take throughout the emergency period will be important when measure are decided by the judge.
The functions of parental responsibility with respect to their children remain fully in force during the emergency period. If a child has contracted Covid-19 and requires hospital admission, respecting the rules of the health centre, assistance provided by the child’s parents must be shared and not depend on which of them is the custodial parent. The suspension of school classes does not mean that children are on holiday as they must complete the tasks given to them by their teachers. It is therefore the obligation of both parents to ensure their children continue with their education. Fortunately, the internet allows both parents to be directly involved in carrying out these tasks.
A number of practical issues have been raised about custody measures which had formerly been agreed.
Where joint custody has been agreed and the parents live in the same city, are the same periods of stay maintained? Since the state of emergency was established, several family judge boards have been adopting agreements on this matter. Of the 43 agreements:
33 are in favour of maintaining shared custody: Albacete, Alicante, Baleares, Barbate, Barcelona, Burgos, Cádiz, Castellón, Coria del Río, Elche, Girona, Granada, Granollers, Las Palmas, León, Linares, Logroño, Lleida, Marbella, Melilla, Murcia, Orense, Pamplona, Sabadell, Seville, Toledo, Torrejón de Ardoz, Valencia, Valladolid, Vigo, Villena, Vitoria, Zaragoza
ten have agreed to suspend shared custody: Huelva, Lucena, Malaga, Mataró, Orihuela, Salamanca, Santander and Torremolinos. Tarragona, Reus and Marathon also favour suspension but have left open the possibility of parents reaching agreements.
Therefore, over three-quarters of Boards of Judges agreements are in favour of maintaining joint-custody regimes.
If individual custody has been agreed but the custodial parent has tested positive for Covid-19, is this a reason to ask for the change of custody? In principle, the modification of custody requires the change in circumstances to be permanent, and it seems that virus is temporary and, therefore it not a cause of definitive modification. However, by agreement between parents or via section 158 CC (Spanish Civil Code), it is possible for the provisional modification of a custody order until the parent who has contracted Covid-19 recovers.
Right of access
RD-Law 463/2020, of 14 March, does not cover breaches of the visitation regime. But it does expressly indicates that ‘during the validity of the state of emergency, people may only use public highways to carry out the following activities… (e) assistance and care for the elderly and children. Consequently, the need for a parent to have to use public roads to pick up a child/return them after the visits have finished is being considered. As we have previously indicated, it must be borne in mind that public transport services operate normally, and that hygiene measures are maintained, so that the transfer of children does not constitute any risk. Both custodial and non-custodial parent must guarantee the health of their children. Parents should be concerned about their child’s level of exposure to the virus, which should be the absolute minimum, especially if the child has any underlying condition which poses a greater risk to the effects of the virus.
Before facing the problems that are being presented in relation to the right of access, it is necessary to consider the following. The Spanish government has launched an advertising campaign ‘#EsteVirusLoParamosUnidos’ in which it asks citizens to collaborate in fighting the virus. Its objective is to reinforce the idea of ‘unity and collective responsibility’ and that ‘it is each individual citizen, and society as a whole, who are the main drivers in the fight against the virus.’ This same campaign should also be targeted at patents, so than, in these exceptional circumstances, they first look to the interests of their children.
Rights of access during holiday periods
With regard to holiday periods and hopefully this will only affect the Easter break, court orders has to be respected except for in the above-mentioned cases.
What we are detecting is that some parents consider that, as classes have been suspended, we are in a non-school period and, therefore, this isolation time must be shared between both parents. The children are not on holiday. To consider the emergency period simply as a non-teaching period is incorrect. Although children are not attending schools, they must continue to carry out their schoolwork at home, depending on their age and school year. It is therefore inappropriate to divide these days between both parents, because such circumstances are not provided for in either the ruling or in the regulatory agreement. Another very different matter is that the parents have reached an agreement to divide their children’s stay between them in this exceptional emergency period, because it has to be recognised that it can impose a considerable burden on the custodial parent who must alter their work patterns. These agreements should be reflected in writing through the usual means of communication between the parents such as email or WhatsApp.
Rights of access for grandparents
A different problem arises with grandparent visitation regimes. Since the beginning of the Covid-19 crisis, governments have been insisting that the elderly are more vulnerable to the disease, especially if they have certain pre-existing conditions. In these cases, rather than in the interest of the child, it is necessary to look in the interest of the grandparent, and perhaps suspending visits is the most appropriate measure.
Judicial activity/functioning of the courts
All family court proceedings have been suspended while the state of emergency remains in force, other than in exceptional circumstances, such as where is a child in danger. In cases of criminal offences and specifically in situations of gender and domestic violence, rapid trials (Diligencias Urgentes – Juicio Rápido) are taking place to agree protection orders.