What is sole custody and when does it apply?

In many separation or divorce proceedings, questions arise about what type of custody can be requested and in which situations it may be the most suitable option. If you need legal advice from the outset, you can consult a family lawyer to assess your family situation and determine which arrangement best protects your children’s interests.

When a couple with minor children decide to separate or divorce, one of the most important decisions is determining who will take care of the children on a daily basis. Sole custody is one of the most common arrangements, although it is important to understand exactly what it involves before making any decision.

What does sole custody mean?

Sole or exclusive custody is an arrangement in which only one parent assumes the children’s usual residence and daily care. This includes everyday responsibilities such as meals, supervision of school matters, basic medical care and day-to-day activities.

The other parent, known as the non-custodial parent, retains their rights and duties towards the children through:

• Contact arrangements: regular contact as established by the court or by agreement.
• Child maintenance: financial contribution towards the children’s upkeep.
• Shared parental responsibility: in most cases, both parents continue to make important decisions together regarding the children’s education, health or religion.

It is essential to understand that custody and parental responsibility are different concepts. While custody refers to daily living arrangements, parental responsibility involves making important decisions, and it is usually shared even when custody is exclusive.

Sole custody vs shared custody: which is better?

There is no single answer. Current legislation tends to favour shared custody as the preferred arrangement when it benefits the child, but every family has different circumstances.

Sole custody may be more appropriate when:

• There is a significant geographical distance between the parents’ homes.
• One of them has very limited availability due to work commitments.
• There have been situations involving domestic violence, neglect or harmful behaviour.
• The children themselves, especially from the age of 12, express a clear preference.
• By mutual agreement, both parents believe it is the best option for the children’s stability.

In any case, the best interests of the child are always the guiding principle behind the court’s decision.

How is sole custody established?

There are two main ways of establishing this custody arrangement, by mutual agreement or by court decision. When both parents agree, they can include sole custody in the regulatory agreement submitted to the judge in mutual consent divorce proceedings. This document must clearly set out:

• Which parent is granted custody.
• The contact arrangements for the non-custodial parent.
• Child maintenance payments.
• Use of the family home.

After receiving the favourable report from the Public Prosecutor’s Office, the judge will approve the agreement if it is considered to adequately protect the children’s interests.

If there is no agreement between the parties, the judge will determine the custody arrangement after assessing a number of factors, including:

• The emotional bond between each parent and the children.
• Employment, financial and housing circumstances.
• Availability to care for the children.
• Expert reports, such as those issued by psychologists or social workers.
• The children’s views if they have sufficient age and maturity, usually from the age of 12.

In particularly serious situations, such as cases involving abuse, violence or addiction, the judge may even order the removal of the other parent’s parental responsibility.

Can sole custody be changed?

Yes. The custody arrangement is not final if family circumstances change substantially. For example, an application to vary the arrangements may be made when there is a change of residence, an improvement in one parent’s employment situation or any other relevant circumstance affecting the child’s welfare.

This makes it possible to move from sole custody to shared custody, or vice versa, provided it can be shown that the change benefits the child.

Rights of the non-custodial parent

The parent who is not granted custody still retains fundamental rights in relation to their children:

• Contact arrangements: these usually include two afternoons during the week, alternate weekends and half of the school holidays.
• Ongoing communication: phone calls, video calls and messages, unless there is a specific court restriction.
• Participation in important decisions: education, health or extracurricular activities.
• Information: access to school records, medical information and any relevant matters concerning the children.

This arrangement constitutes both a right and a duty for the non-custodial parent and for the children, and failure to comply may lead to legal consequences.

Legal advice in sole custody cases

Every family situation has its own particular circumstances, so there is no one-size-fits-all solution. Having legal advice from the outset makes it possible to make better-informed decisions and avoid future disputes.

If you are considering applying for sole custody or need to protect your rights as a non-custodial parent, it is advisable to have your case assessed individually in order to define the most appropriate legal strategy and safeguard your children’s welfare.