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:

Their duty to the custody and care of the children: the parents have the right and the responsibility to look after and raise their children.
The right to make important decisions: the parents have the right to make significant decisions in the lives of their children, such as those relating to their health, education, or religion.
The duty to protect and support: the parents must provide the children with food, housing, education, and protection.
The right to represent their children: the parents can make legal decisions in the name of their children.

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:

Shared Guardianship and Custody: in this case, both parents share the responsibility to look after and raise the children, who live alternatively with each parent according to an agreement established by the parents or determined by a court.
Exclusive Guardianship and Custody: in this situation, a single parent is responsible for the day-to-day upbringing of the children, while the other parent can have regular visitation and visitation rights.

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.

Scope – Parental Authority refers to the rights and duties of the parents, while Guardianship and Custody is specifically related to the responsibility to look after the children in their everyday life.
Important decisions – Parental Authority includes the parents right to make significant decisions for the children, while Guardianship and Custody is centred on physical custody.
Shared or exclusive: Parental Authority is presumed to be shared between parents, but Guardianship and Custody can be shared or exclusive, depending on what will be best for the child.

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.