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Key differences between paternal authority and guardianship and custody in Spain

In the Spanish legal environment, Parental Authority and Guardianship and Custody are two important concepts relating to the upbringing and care of children.  Both concepts are related to parental responsibility, but they are fundamentally different in their scope and application. In this article we are going to examine these key differences to better understand their implications in the event of divorce or separation.

Parental Authority is a legal term which refers to the rights and duties of parents in relation to their children. These rights and duties include:

It is important to highlight that, in Spain, Parental Authority is presumed to be shared between both parents unless a court determines the contrary owing to exceptional circumstances.

Guardianship and Custody refers specifically to the day-to-day responsibility to look after and raise the children. Two types of Guardianship and Custody exist in Spain:

The decision whether to grant shared or exclusive Guardianship and Custody is taken in the best interests of the child and can be determined by an agreement between the parents or by a judicial order.

To summarise, Parental Authority and Guardianship and Custody are two fundamental concepts in familial law in Spain. Parental Authority encompasses the general rights and duties of the parents, while Guardianship and Custody focusses on the daily responsibility and care of the children. Both concepts are important in the case of divorce and separation, since they determine how the parental responsibilities and time raising the children is shared. Ultimately, decisions on these matters are made in the best interests of the child, and so may vary from case to case.

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