EU child custody laws need updating

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Work-life balance policies are a patchwork across the EU. [Spirit-Fire/Flickr]

Modern families are evolving, but family law has failed to keep up. It is time for the EU to step in to ensure that families, and particularly children, have protection and legal certainty, wherever they are in Europe, argues Beatriz Becerra Basterrechea.

Beatriz Becerra Basterrechea is a Spanish independent MEP in the liberal ALDE group.

“All happy families are alike; each unhappy family is unhappy in its own way.” That is the opening line of Leo Tolstoy’s Anna Karenina. This is very true, but there is a pillar that transcends the emotional or personal well-being that underpins happiness or unhappiness: the enjoyment of equal rights. The effective guarantee of equality before the law.

The most important changes in a society take place in the home, in the domestic and family sphere. Despite the revolution that the internet has heralded in our global world, new technologies have not caused as radical a transformation in our lives as the new family models that are being created. These are the result not only of the disappearance of many prejudices, but also of the sweeping changes experienced in society as a whole in respect of awareness and vindication of universal and indivisible human rights. The indispensable task of adapting the applicable regulatory and legal framework to reflect these changes in family models is not yet complete. And it is here that our elected representatives and political bodies have the responsibility to act. They must be up to the challenge of ensuring that the right conditions for this adjustment are in place. Let me share with you some illuminating examples, in Spain and Europe.

Is mother always best? What about when there are two mothers?

In divorce cases, mothers are traditionally awarded custody of the children. This was seen as the natural – although not necessarily the best – order of things in society in which a family was headed by a father who provided material support and a mother who brought up the children. But with changes to family roles, it no longer makes sense to afford priority to the mother when granting custody. This is because, among other things, divorces and separations now occur in couples made up of two women or two men, whether married or bound by one of the legally recognised forms of civil union, and the fact that children may have been adopted or conceived naturally or by assisted reproduction. It makes no sense for either men or women aspiring to joint parental responsibility (which is obligatory in any case), as enshrined in the Convention on the Rights of the Child and the Convention for the Protection of Human Rights and Fundamental Freedoms. But most importantly, this is because the best interests of the child must take precedence.

Each EU member state has its own rules on custody and rights of access to children of dissolved marriages. Shared custody is the preferred solution in Belgium and Italy alone. In other member states it is only possible by mutual agreement or a court decision. In Spain, a country with among the highest number of divorces in Europe (in excess of 100,000 per year), shared custody of children is granted in less than 20% of cases. In this country, the lack of harmonisation of European standards and the resulting inequality among parents is aggravated by a further inequality:  the fact that each autonomous community has its own rules. Since 2010, when Aragon established joint custody as its preferred option, only Catalonia, Navarre, Valencia and the Basque Country have passed similar laws.

Shared custody

I believe shared custody to be the fairest option since it puts the interests of the child first. It gives the child the opportunity to enjoy and strengthen ties of affection with both parents. It nourishes values and attitudes such as shared family responsibility and the equal and equitable sharing of tasks and family expenditure, gives women better access to a career and provides a balance between work and family life. In short, I support this option because it can help achieve progress towards equality in societies that choose to make it their preferred option.

Another challenge for Europe is how to cater for the families of same-sex couples. 61% of Europeans are in favour of marriage equality across Europe. So LGBTI people must be able to enjoy the effective right to form a family on equal terms to their fellow citizens. Yet depending on the member state in which they live, an LGBTI couple may or may not be allowed to get married, have children, enjoy economic rights or be entitled to hold common property. And if they move to another EU member state the legal uncertainty can make their lives miserable.

I would also like to stress the need for regulations on surrogacy. It is time the European institutions took the lead and came up with a common framework providing legal certainty for families — whether heterosexual or same-sex – who wish to take what may be their only chance of having children, and to give children the recognition and legal coverage they need. Surrogacy can be compatible with rights and human dignity if it is carried out in a sanitary and altruistic manner and based on the surrogate mother’s free will, avoiding any commercialisation and abuse by means of regulations designed to put an end to the hypocrisy of some of our countries which ban it at home but tolerate it abroad.

I believe that Europe has to place families – all families – at the heart of its policies. Like the vast majority of Europeans, and contrary to the view held by conservatives, we as liberals see a diverse, rich range of what families can be, based on citizens’ freedom to start a family within the existing legal framework. And, as a member of the European Liberal Democrat Party, I consider that safeguarding rights and freedoms must remain an essential part of what the EU does, because families, all European families, are the vessels which are helping millions of people to chart a long and painful voyage through the economic crisis. They are a safe haven offering solidarity, support, hope and progress.  And yes, a fortress of happiness.

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