As provided in Article 1906(5) of the Civil Code: “The court shall determine the child’s residence and visitation rights in accordance with the child’s best interests, taking into account all relevant circumstances, namely any agreement between the parents and the willingness shown by each of them to foster the child’s regular relationship with the other.” (our emphasis)
This provision, in paragraph 6, states that: “When it corresponds to the child’s best interests and after considering all relevant circumstances, the court may determine alternating residence of the child with each of the parents, regardless of mutual agreement to that effect ….” (our emphasis)
The separation or divorce of parents is not always carried out peacefully, and this implies that there may be, and remain, an intense level of conflict between them, making their communication scarce and fraught.
This communication affects the children and, in proceedings to regulate parental responsibilities, it becomes relevant, particularly when the establishment of an alternating residence arrangement is under discussion.
Indeed, the establishment of an alternating residence arrangement must be grounded on the existence of an adequate communicational relationship between the parents, and it is also important that their educational approaches be similar and that there are no significant frictions between them.
Legal scholarship has developed this topic by indicating certain criteria that should be present when deciding on the establishment of an alternating residence regime; one such criterion is the parents’ capacity for dialogue, understanding, and cooperation, as well as the existence of a common educational approach or, at least, consensus on its fundamental lines.
This is because, when there is no capacity for dialogue between the parents, it is impossible for cooperation to exist and for them to reach understandings regarding their children’s lives, which means that the existence of a common educational model would depend on pure chance rather than on a concerted effort by both to achieve what, by agreement, they define as being best for their child.
Parents who are unable to set aside their personal disagreements to make decisions regarding their children cannot reach a reasonable level of communication that would allow them to cooperate in the children’s upbringing.
In an alternating residence arrangement, this capacity for cooperation and communication is all the more important because not only matters of particular importance are exercised jointly by both parents, but also day-to-day matters in the children’s lives, such as, for example, bedtime, dinnertime, the age at which they may or may not visit friends’ homes, and the extracurricular activities the children pursue during the time they are with each parent.
In an alternating residence arrangement, these matters, which in another regime might seem of lesser importance, require significant consensus, insofar as, in the absence of such understanding, we may have situations in which, at one parent’s home, the child goes to bed at 9:00 p.m. and at the other’s at 10:00 p.m.; in one week the child engages in certain activities which, in the following week, are not pursued, with other activities being attended or not, etc.
This communicational imbalance between the parents impacts the children, who become fully exposed to the existing conflict, fostering a factual imbalance in their lives and, consequently, an emotional imbalance that does not ensure the safeguarding of their best interests.
Finally, it should also be noted that case law has held that, despite the current wording of Article 1906(6) of the Civil Code allowing for the establishment of alternating residence regardless of mutual agreement by the parents when the court considers that such is in the child’s best interests, in the age range between 4 and 10 years, it should only be understood that there may be grounds to establish an alternating residence regime in situations where, concretely, each parent can and should trust the other parent, with there being no parental conflict at all, or, where conflict exists, that it is conjugal in nature; that is, it does not interfere with the joint exercise of parental responsibilities in relation to the children.
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