Revocation of joint custody for working hours

In this article, our family law specialist lawyers analyze the recent sentence passed by the Provincial Court of Badajoz, where it is sentenced based on very common facts, such as inflexible working hours and even late hours for workers who are dedicated to the catering sector.

The sentence goes one step further in the jurisprudence of these specific cases, and concludes that it is not compatible to hold the guard and joint custody of two minors, of a parent who is a waiter, since the well-being cannot be guaranteed of minors due to the hourly demands of the working day.

Conflict over children

At first, the court of first instance ruled that the custody regime must be shared. However, the children's mother appealed that the biological father was unable to fulfill the obligations established in the shared custody regime, given that he had inflexible hours, such as those typical of the catering sectors.

In the appeal made by the lawyers of the children's mother, it is appealed that the minors have not attended school because the father has fallen asleep due to the night hours that his waiter work required. To add, that of the psychological report that was attached, the same report advises the individual guard and custody in favor of the mother, due to the difficult schedules that the father had.

Resolving the appeal, the Provincial Court decides to rule in favor of the revocation of the guard and shared custody, and to impose an individual guard and custody in favor of the mother, condemning the paternal parent to pay a maintenance pension of 150 euros for each son.

The situation of minor children

The minor children in the psychological report made by the social worker stated that their wish was to spend more time with their paternal parent, but that they were aware that their father had a hard job and that they understood the situation in the catering sector.

In the conclusions of the psychological report of the social worker, it is established that with the change of custody in an individual regime, the children will live in a fully satisfactory environment. We must bear in mind that in family law processes, the interest of the minor always prevails as a legal asset to protect.

The conclusions of the Provincial Court

The paternal parent defends that he is fully capable of taking care of the two minor children, having sufficient autonomy to be able to combine the job of waiter with the paternal obligations to develop.

However, the Provincial Court after studying the father's working hours, decides that he cannot take charge of the joint custody of the two minor children.

The Court adds that it is necessary to stick to the present state of situations, and not to the facts that may be constitutive in the future, given that they may or may not occur.

In conclusion, the Provincial Court rules that it cannot be sentenced based on what will happen in the future, and therefore, given that the present situation is what it is, it decides to grant individual guardianship and custody in favor of the mother.


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