The Supreme Court has confirmed that it is inadmissible to establish a nest house system —system of alternating divorced parents with shared custody to live with their common children in the home that was the family home during the marriage—if there is no agreement between the ex-spouses. If not, the “system is a potential source of conflict with a high probability of negative repercussions on minor children,” the document states. The Civil Chamber applies its jurisprudence to a specific case from the Madrid Court, annulling the system that had been established even though none of the parents had requested it. The magistrates pointed out that this model cannot be imposed without agreement between the parties except in “exceptional circumstances.”
The ruling annuls the nest home system in the case studied, but maintains the decision of the Provincial Court of Madrid to grant shared custody of the child for weeks. According to what the Civil Chamber stated, to agree on the nest house system it is “It is essential to verify that there is a high level of understanding to plan the organization, and it should not be organized, except in exceptional circumstances, if one of the parents objects.”
The court’s decision was adopted after an appeal filed by the father, who claimed to be the owner of the home that was being used as a nest house. A Madrid court had resolved the divorce of the spouses, attributing to the mother the custody of the child and the use of the family home in which she had lived before the divorce. The new decision awards the father the use of the home because it is his property, since his ex-wife has a higher income than him.
The court points out that the lack of specification of a normative criterion has led jurisprudence to establish the elements that must be assessed. In this sense, he has indicated that attention must be paid to two factors. “First of all, to the interest most in need of protection”, that is, that which guarantee combining the periods of stay of the children with their parents. Secondly, if the home established as the family home is owned by only one of the spouses, by both, or if it belongs to a third party.
In the case examined, since the nest-house system is ruled out, the home belongs to the father and the mother has a higher income, she is “in a position to provide the child with a home during the time that custody corresponds to her.” This does not mean that the ex-wife cannot claim the amounts that, she says, the ex-husband owes her for a series of renovations carried out on the property during the duration of the marriage.
