Sometimes, clients inquire about the possibility of suppressing a parent’s visitation regime. The answer is yes, it can be done, but the specific circumstances of the case must be assessed, as it is truly an exception based on the best interest of the child.
A practical example is found in a recent ruling, STS 694/2024 – ECLI: ES:TS:2024:694, in which the Supreme Court proceeded to suppress the visitation regime under the best interest of the child.
The ruling emphasizes how this principle should be applied to defend the rights of minors and their free development as individuals. In the Third Legal Ground, it recalls its legal configuration:
«The best interest of the child is configured as a basic axiological principle in the interpretation and application of regulations governing parental relationships and protective measures for minors. Its proper scope operates primarily in matrimonial processes, but not exclusively. It is not a static legal concept but a dynamic one that evolves continuously conditioned by prevailing values in society. It is a general and abstract concept to be specified in each case subject to judicial consideration according to specific concurrent factors.»
Furthermore, regarding its meaning, the mentioned Judgment refers to previous ones, stating:
«The lack of maturity and competence of children inherent to the limitations of their age, the absence of resources to cope with unfavorable situations, often place them in a position of special vulnerability, prone to abuse, mistreatment, and violations of their fundamental rights, or even to be instrumentalized to their detriment in interpersonal conflicts among adults, with a special emphasis on those involving their parents.
Therefore, it is necessary to protect minors from exposure to risk situations for their desired future integration into the adult world, without negative repercussions from their experiences. Additionally, it is crucial to recognize that children are rights holders, not just individuals under legal protection, and as such, indisputable beneficiaries of all human rights (STC 99/2019, July 18, FJ 5).
The minor, as an individual in formation, requires special protection, as they have a developing personality that needs preservation. In this sense, Article 2.2, sections d) and e) of Law 1/1996, on the legal protection of minors, establishes manifestations of this interest, such as «promoting the effective integration and development of the minor in society,» «minimizing the risks that any change in material or emotional situation may cause to their personality and future development,» as well as «preparing for the transition to adulthood and independence.»
In essence, someone who cannot, due to their age, defend themselves or safeguard their interests transfers this function to public and private institutions to ensure that those interests are duly respected, always after hearing the minors with sufficient judgment to avoid being excluded from decisions that most directly affect them.
An example of this is the mandatory intervention of the Public Prosecutor in judicial and administrative proceedings to safeguard these interests (Article 749 LEC), or the possibility of courts imposing measures ex officio, as an exception to the principles of party disposition and contribution, essential pillars of the civil process (Articles 158 CC and 752 LEC).»
The Supreme Court thus reminds us that if a court-imposed visitation regime is detrimental to minors, it is possible to proceed with the suppression of the visitation regime under the best interest of the child.
In the specific case, the visitation regime was suppressed based on the following circumstances:
- «Manifest disinterest of the father in maintaining relationships with his daughter for four years, only engaging when judicially demanded. There is also evidence of inappropriate behavior towards the minor, as described when she was a baby. His involvement in her care and attention is nonexistent.
- The father’s personality has «low impulse control,» as evidenced during the interview. He raises his voice when told something he does not like. His examination consistently refers to aggressive and highly exaggerated behavior. There is no evidence that he takes the prescribed medication for his lack of impulse control. Furthermore, he hides his psychiatric pathology.
- Previous episodes of domestic violence with significant injuries against the plaintiff. This situation has not been overcome; the conflict persists. According to the psychosocial report, his account is full of «insults towards his partner.» The risk of projecting and communicating such negative judgments to the child is real and manifestly contrary to her interests, given her formative personality and the fact that the mother is the emotional core of the child, providing the necessary security for her stability and proper emotional development. The Resolution of October 6, 2021, from the European Parliament on the impact of partner violence and the custody rights of women and children, underscores in its section i) «[t]hat all forms of violence, including witnessed violence against a parent or close person, must be considered both legally and practically a violation of human rights and an act against the best interest of the child.» Furthermore, the Public Prosecutor reports another case of domestic violence against a new partner, for which he was convicted.
- The expert report rules out that the father has the minimum skills for the care of the child, making a conventional custody regime without proper control a risk. It determines that the visits should take place in a supervised setting, but it does not analyze the advantages for the child to communicate with her father under the exposed conditions. Neither do the advantages appear in the court’s decision, which merely argues that the expert report recommends such communication regime.
- The child, at the time of the court’s decision, was only 8 years old, placing her in a situation of manifest vulnerability. Additionally, due to her young age, she lacks the necessary tools to control a situation like the present one, with evident risks of harmful repercussions on her future personality development. We are not dealing with a simple temporary distancing and a corresponding progressive establishment of parent-child relationships. The court states that the suggested regime in the psychosocial report constitutes a kind of trial-and-error experiment that is not acceptable.
Therefore, we do not see, in this particular process, considering the set of circumstances mentioned, not extrapolatable to other cases, that the overriding interest of the child entails maintaining the predetermined communication regime with her father.»
If you need legal advice on family law, child support, custody, divorce, parental authority, or alimony, Roji Abogados can provide the service you need. We have a multidisciplinary team of lawyers who collaborate with other professionals (psychologists, economists, bailiffs, etc.), offering comprehensive legal assistance.
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