Family home

The Supreme Court (TS) has resolved a divorce case with three minor children in which the custody had been formally attributed to the mother . However, the father spent a substantially equivalent time with the children. Therefore, the court considers that the system was, in fact, a shared custody , although until then it had been called maternal custody. This difference is decisive for reviewing the use of the family home.

The mother had requested to keep the exclusive guardianship , that the father pay child support, and that she and the children could use the home . The court granted her custody but established a broad contact with the father on alternate weekends, two weekdays with overnight stays, and part of the holidays. The deliveries and pickups were made at the school. The Provincial Court upheld, essentially, these measures, and the father appealed to the TS.

The TS does not change that calendar. What changes is its qualification since if the coexistence with both parents is substantially equivalent, it does not fit to call it exclusive custody of the mother. It also does not accept that the use of the house granted to her serves to justify that designation, because that attribution was precisely a consequence of having considered that she had exclusive custody.

To decide on the housing , the court explains that the CC art.96 does not specifically contemplate shared custody . Therefore, it applies by analogy the criteria provided for cases where the children are distributed between both parents. The circumstances must be assessed, who needs more protection, and the ownership of the property. The attribution of use must be temporary and facilitate adaptation to the new situation. In this case, the mother and the minors will be able to continue using the housing. until it is settled the community property.