Custody, visitation and child maintenance outside marriage: parent-child measures

They are the judicial procedure that regulates the relationship with minor children when the parents are not married and cohabitation ceases: parental authority, care and custody, visitation regime, child maintenance and use of the family home. The substantive rules are the same as in a divorce: the Código Civil (Civil Code) does not distinguish between marital and non-marital children, and the separation of the parents does not exempt them from their obligations to the children (article 92.1 of the Código Civil).

The practical difference is that here there is no marital bond to dissolve: the judge only decides about the children. In this procedure, common assets are not liquidated nor is a compensatory pension set between the members of the couple; only matters relating to the minors. It is processed before the Court of First Instance (or Family Court) and the law requires acting with a lawyer and a procurador (court representative) even in mutual agreement (article 750 of the LEC): Managora takes care of the entire procedure for you.

The Public Prosecutor always intervenes in defence of the minors' interests (article 749.2 of the LEC). As a natural person, you are exempt from the tasa (official fee) for judicial proceedings (article 4.2 of Ley 10/2012): this procedure does not accrue any official fee that you must pay.

It is advisable to separate two levels. Parental authority (the important decisions: school, health, place of residence) remains shared in almost all cases. Care and custody is the daily cohabitation, and it can be individual (the children live with one parent and the other has a visitation regime) or shared (distribution of times between both).

To decide, the courts apply the criteria set by the Supreme Court since judgment 257/2013: the previous practice of each parent in caring for the children, their aptitude and real availability, the age and arraigo (roots) of the minors, the proximity of the homes and the school, the number of children, the relationship between the parents and the wishes expressed by the minors. The Supreme Court considers joint custody a normal, and even desirable, regime when the requirements are met.

There are legal limits: joint custody is not appropriate when a parent is involved in criminal proceedings for violence against the other or against the children (article 92.7 of the Código Civil, in the wording given by Ley Orgánica 8/2021, of 4 June). Before deciding, the judge obtains the prosecutor's report and can rely on the judicial technical team. Regarding the hearing of the children, article 92.6 of the Código Civil no longer sets an age threshold: the judge hears minors who have sufficient judgment or maturity, whatever their age. In the contentious procedure, furthermore, rule 4 of article 770 of the LEC maintains that the children will be heard if they have sufficient judgment and, in any case, those over 12 years of age.

Child maintenance covers sustenance, housing, clothing, medical assistance and education of the minor (article 142 of the Código Civil) and is set in proportion to the income of the person paying it and the needs of the child (article 146). It is distinguished from extraordinary expenses (orthodontics, glasses, unforeseen activities), which are usually shared at 50% and require prior consultation except in emergencies.

The General Council of the Judiciary (CGPJ) publishes guiding tables with an online calculation tool at poderjudicial.es: it starts from the income of both parents, the number of children and the place of residence. The courts use them as a starting point, but they are not binding and the tool itself warns that the result is merely informative; furthermore, they do not include all expense concepts, so the final amount is adjusted to each case.

The maintenance is updated every year (usually with the CPI) and is independent of the visitation regime: it is paid even if the other parent breaches the stays, and visits are not lost due to non-payment. In joint custody, maintenance may not be set, or one may be established at the expense of the parent with the highest income, each contributing to the expenses according to their capacity.

The criterion of article 96 of the Código Civil is the interest of the minor: in individual custody, the use of the family home is attributed to the children and the parent who lives with them, as a rule until the age of majority; in joint custody, the judge decides according to the family interest most in need of protection. Although the precept is drafted for marriage, the courts also apply it to unmarried couples with minor children.

There are important nuances: the attribution of use does not change the ownership of the home, it can be limited in time and it becomes complicated when the property belongs only to one of the parents or to a third party. The use of the home can also be valued as an in-kind contribution to maintenance. It is one of the measures with the most casuistry: at Managora we study your specific situation before proposing the solution in the agreement or in the lawsuit.

Since 3 April 2025, before filing a contentious family lawsuit, an attempt at an out-of-court settlement must be proven, the MASC: negotiation between the parties, mediation, conciliation or binding offer (article 5 of Ley Orgánica 1/2025). The document proving the attempt is attached to the lawsuit. There are exceptions, such as the urgent measures of article 158 of the Código Civil or filiation processes, and the requirement does not apply when everything is submitted by mutual agreement.

The contentious lawsuit follows the procedures of the verbal trial with the specialities of article 770 of the LEC: written reply, hearing with evidence, report from the Public Prosecutor and, if applicable, examination of the minor and report from the psychosocial team. While the lawsuit is being processed, provisional measures can be requested so as not to leave custody and maintenance unregulated.

At Managora, the mutual agreement procedure has a fixed price (you can see the updated amount in the procedure's file). The contentious one is budgeted according to the case: it ends up in a court and the cost depends on the complexity and the attitude of the other party, so we do not promise a fixed price or immediate resolution. We study your situation, prepare the MASC and the lawsuit or the reply, and accompany you until the judgment.

Yes. When circumstances vary substantially, either parent (and the prosecutor themselves) can request the modification of the measures (article 775 of the LEC and article 90.3 of the Código Civil): loss of employment or relevant change in income, moving to another city, new needs of the minor, repeated breaches or an age of the child that advises another custody regime.

The modification can be processed by mutual agreement (new agreement approved by the judge) or by contentious lawsuit, with the prior MASC attempt. Very important: as long as there is no new judicial resolution, the current judgment is binding; do not stop paying the maintenance on your own, because non-payment can be executed and even constitute a crime.

Managora prepares and submits it for you: tell us your situation, we draft the regulatory agreement or the lawsuit and submit it to the court with all the documentation. You can start the procedure from the Custody and Maintenance Regulation (Parent-Child Measures) file.