La prevalencia del interés superior del menor en el otorgamiento de la custodia compartida aun tras la sentencia firme recaída sobre el progenitor por actos de violencia familiar o machista

Résumé

The new section 8 of article 92 CC, introduced by Organic Law 8/2021, of June 4, on comprehensive protection of children and adolescents against violence, affirms that the Judge at the request of one of the parties, with a report from the Public Prosecutor’s Office, may agree to joint custody and custody on the basis that only in this way is the best interest of the minor adequately protected. Well, there is a jurisprudential trend in the Tarragona Provincial Court that indicates the possibility that the Judge, in the best interests of the minor, grant said type of joint custody, even though the parent has been convicted of a crime of violence against the mother, specifically a crime of mistreatment of work attenuated on the woman, and, in another case, by a crime of harassment. On the contrary, the jurisprudence of the Supreme Court understands that this type of custody does not fit when the relations between the litigants are very seriously deteriorated, since even the plaintiff exercises criminal action against her husband in the criminal procedure followed against her person, therefore, the shared custody with respect to the care and attention of the minors is of a very poor prognosis.