The Supreme Court has prohibited a judge from establishing the “nest house” system in a divorce with minors involved if the separated parents have not previously reached an agreement to exercise shared custody. The Civil Chamber resolves the case of a couple from Madrid to whom this system was imposed after separating, remembering that it is “essential to verify that a high level of understanding is present to plan the organization, and it should not be organized, except in exceptional circumstances , if any of the parents object.”
The judges have studied the case of a couple who, after divorcing, went to court to decide how to articulate joint custody with respect to their ten-year-old son. The Madrid Court agreed in the second instance to a system of shared custody for weeks, which is confirmed, and established the “nest house” system: a family home where the minor lives and where the parents go to reside with him. in the alternation period.” Neither of them had asked for this system.
The Supreme Court has upheld the appeal of the father, owner of the house, and establishes in this ruling that this system should not be imposed by a judge if there is no prior agreement between both parties. It is a system that, without an agreement in place, can become a “potential source of conflict” by having a “high probability of negative impact on minor children.”
In this case, furthermore, and as reflected by the Supreme Court, “the poor relationship between the parents” forced to take turns living in the same home with their common child is confirmed. The man claimed that the house was his and that, in addition, he was in a “more precarious” economic situation than the child’s mother.
The Supreme Court recognizes that in previous cases it had endorsed this option but in cases in which there was a prior agreement and in which the parents themselves had agreed to use the family home in that way, in which the child does not change house. But in other resolutions he had also explained that the “nest house” was not a system “that ensures the interest of minors” if that agreement does not exist. A solution, said the same room in 2022, “that is uneconomical and that requires an intense level of collaboration from parents.”
Divorces grow in 2024
The figures offered quarterly by the General Council of the Judiciary on divorces that end up in court reveal that in recent quarters these lawsuits have increased. In the second quarter of this year, according to the latest available data, these types of demands increased by 5% compared to the same period of the previous year. Divorces without agreement grew by 6.6% and non-consensual separations by 31.3%.
Judicial conflicts related to children also grew. In that quarter, demands to modify consensual measures grew by almost 11% year-on-year and non-consensual ones by 8%. Lawsuits related to the custody and support of non-marital children increased in a similar proportion.
According to the National Institute of Statistics (INE), judges grant shared custody in almost 50% of cases, as reflected in the latest available statistics. In more than half of all registered divorces, judges had to decide on custody of minor children. These statistics do not reflect in how many cases judges have chosen to impose, with or without prior agreement, this “nest house” system that is now drastically limited by the Supreme Court to cases in which both parents agree.
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