This Thursday Father's Day is celebrated in the midst of mandatory confinement by the State of alarm. Many Divorced parents wonder if they have the right to see their children, if they can bypass the ban on going outside or circulate for it, or if they can have them at home during the weekend.
- Can divorcees go see their children in the state of alarm?
We are talking about parents without full or shared custody. Family law associations and the Madrid Bar Association consider that yes they have the right to be with their children because they consider that it is covered by one of the cases allowed by Royal Decree 463/2020, of March 14: “During the validity of the state of alarm, people may only circulate along the roads for public use to carry out the following activities: e) Assistance and care for the elderly, minors ”. In his opinion, this contemplates the need for a parent to have to "circulate" on public roads to pick up a minor and hand him over after the visits are over.
Now we have to always put the protection of the health of minors above of any standard. Therefore, if the father has symptoms or is infected, or lives with someone who is, visits should be suspended. Conversely, if it is the mother who is at risk of contagion, she should send the children to the father to avoid transmitting the virus. In any case, the two parents must strictly comply with the rules of the State of alarm and hygiene recommendations.
- Can the mother refuse to deliver them or the father to visit them?
In view of the above, the State of alarm does not cover breaches of the visitation regime: the mother is obliged to deliver them and the father to collect them. Unless there is reliable evidence that the father or one of the people with whom he lives is infected with the virus, the mother does not have the power to suspend the visitation regime. If the mother objects to surrendering the minor, she is failing to comply with the court order and the father can request her execution. Of course, if there is such proof, the mother (the custodial parent) can refuse. In theory, you must submit a request of 158 of the Civil Code for the Judge to decide what is appropriate, but since the courts are closed, in practice you will not be able to do so.
- What if it is considered that it is better that they do not move?
Lawyers consider that, in an exceptional situation like the current one, it is best for the father and mother to reach friendly agreements, which always take precedence over judgments and judicial decisions. A very common agreement is that it is better, to avoid risks, that the minors do not move from the mother's house while the confinement lasts so as not to take risks. In that case, the father has the right to be compensated when the alarm state ends with the visits that you have stopped enjoying. For example, you can have them several weekends in a row although in theory they would not correspond until you 'recover' the missed visits. But this is difficult to ask before a judge, so lawyers recommend that it be reflected in writing. If it is not possible to get the signature of both, that the agreement be recorded by email.