BarcelonaThis week, the Government announced 32 measures against male violence which, in the area of vicarious violence – that which is exercised against children to harm the mother -, showed the intention to carry out a “review of the system of shared custody”. The general director for the Eradication of Gender Violence, Belén Gallo, has specified to the ARA that they intend to make a “diagnosis” to “put on the table what shortcomings there are”. For now, the Catalan Civil Code and the State Law on the Protection of Children and Adolescents establish that no one can have custody of their child or any regime of stays if there are “substantiated indications” of family or sexist violence.
In fact, on Thursday the Group of Experts of the Council of Europe against violence against women and domestic violence (GREVIO) recognized that Spanish legislation “offers a wide range of possibilities to suspend, limit or regulate” contact with children in cases of violence or abuse. However, he regretted that “its use in practice is limited”. So, in which aspects is there room for improvement to strengthen prevention and protect victims?
Indicis or a complaint
The lawyers consulted by the ARA agree that the main improvements to be made do not require more legislation, but the application of the laws that already exist. The lawyer Marta Ariste positively evaluates the latest changes to suspend parental visits. “The 2021 reform spoke of signs of gender-based violence, there would be no need for a report,” he says, and highlights the difficulty it can pose for a victim to initiate a criminal process. However, Ariste makes a point: it is not a unanimous interpretation. She herself has met with courts that have rejected it, and judicial sources respond that for the courts a report is necessary to learn about a situation of violence and gather evidence that justifies canceling visits between father and son. In the same sense, the lawyer Cristina Díaz-Malnero, president of the Family Law Section of the Bar Association of Barcelona (Icab), explains that, often, the suspension is made when there is already a complaint and procedures have been done in the investigation.
For her part, the judge Isabel Giménez, to whom this week the Ministry of Equality has awarded the Menina Award in the category of Feminist Justice, clarifies that a request to the court to suspend visits is always accompanied by documentation to support this demand . For this reason, he says, it is necessary to assess the evidence available in each case, such as medical or psychological reports. However, remember, if there is an open abuse investigation, visits must be suspended.
The meeting points
The obligation to suspend custody or visitation when there is an open investigation has exceptions so that the judge can decide otherwise if he thinks it is best for the child. This point was also key so that the attempts to declare this rule unconstitutional did not succeed, claiming that it violated the presumption of innocence of the investigated. In these cases the judges can set guarantees, such as that the visits are at a meeting point and supervised by psychologists and educators, explains Díaz-Malnero.
The lawyer regrets, however, that these facilities “are saturated”, and recalls the case of a client who spent more than a year and a half waiting to be able to meet his son in one of these spaces. The investigation into the man ended up being dropped, and he later had difficulty regaining joint custody because he had not had contact with the child for a long time. On the other hand, “who has the right to relate to the parents are the children, that’s what the law says; on the other hand, that the parents have the right to see the children is in the popular imagination but not in the law,” explains Giménez. Ariste agrees, who remembers the case of a girl for whom the court maintained visits with her father while he was being investigated for sexually assaulting her and other minors. Now, the man is sentenced to more than 30 years in prison and has appealed against the sentence.
For Giménez, it is a priority to review custody or visitation regimes that were granted before the legal reforms that force them to be suspended when there is an investigation for violence. “There have been boys and girls going to see their father in prison, and cases where the woman was protected and meanwhile the children went to the meeting point to see the father. There they are physically protected, but not emotionally and psychologically” , remembers about the circumstances before the current law. Ariste, aware of the difficulties for a massive review of all proceedings, calls for tools so that the parties involved can request that each case be reviewed.
False parental alienation syndrome
The Council of Europe’s GREVIO report also expressed concern over the “frequent use” of false parental alienation syndrome (SAP), a concept excluded from legislation from 2021 and used when a parent accuses the his ex-partner to manipulate the child against him. Now it is forbidden to use it, but “it is not regulated what the penalty is”, says Giménez. He explains that she has continued to receive letters that cited the SAP once banned and chose to warn that, if she did it again, she was exposed to a fine for abuse of rights or procedural bad faith.
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