According to the Provincial Hearing of Huesca reasons, it is not about chauvinistic violence but familiar violence, and was an precise aggression of her towards him. It gives the reason to the mother in his resource and modifies in the interests of the minor the regime of individual safekeeping granted the father, to a regime of joint safekeeping.
The Provincial Hearing of Huesca, in a sentence dictated the past 27 of February of 2019, considers the resource of appeal presented by the mother and establishes a regime of safekeeping shared with respect to the common son of the pair, of 3 years of age.
What it seems to do atypical to this sentence is that the Room of the Civilian grants the joint safekeeping in a case in that violence within the family existed, this time of the wife towards the husband, with a sentence firmede by means.
Procedure of modification of measures existence of penal sentence by aggression
The father had urged the modification of definitive measures with respect to the safekeeping of the common son, a minor of 3 years of age. The Court of instance considers substantially its demand and establishes the safekeeping to its favor, with a quite ample regime of visits in favor of the mother. The sentence also established the obligation of this last one to pay for nutritional pension the amount of 75 monthly Euros.
The mother of the minor resorts in appeal soliciing the exclusive safekeeping to her favor. The Fiscal Ministry interested the disrespect of the resource and the confirmation of the resorted sentence.
Previously the woman had been the condemned as author of a committed crime of familiar violence against her ex- husband, condemns soon confirmed by the Provincial Hearing. The Room also decided the prohibition approach with respect to the pair to a distance inferior to 200 meters, as well as the prohibition of communication. In this condemnatory penal sentence any decision in the matter of guard is not adopted and guards.
Reasons of the Room to grant Guarda combine
The Hearing considers several circumstances to consider that the shared safekeeping is the best possible alternative in this case, as the fact that the father it had moved from address to one near one the one of the mother, which favored the establishment of shared considering the interest the superior of the boy.
In addition, the instance sentence already had granted a very ample regime of visits, reason why the minor was going to have in any case a very extensive contact by the mother. Both ancestors, according to emphasize the sentence, showed interest to exert of individual form a paternity and responsible maternity.
The Room emphasizes that although article 80,6 of the Code of Leasehold Right of Aragon (writing previous to the reform of Law 6/2019, of 21 of March) indicated that it does not come to grant the den and guards neither individual nor shared in the cases in which a penal process in course exists to attempt against the life, physical integrity, the freedom, the moral integrity or the freedom and sexual indemnity of the other ancestor or the children, and has dictated motivated judicial resolution in whom indications founded and rational of criminality are stated, or when there are indications of domestic violence or sort, this rule is merely preventive and it is applied when the penal sentence had not made any decision with respect to the subject (TSJ Aragon of 2 of 2013 July).
In this case the sentence to the mother as author of a committed crime of familiar violence against her ex- husband in firm sentence, does not have to take prepared the automatic deprivation of the individual guard or the possibility of settling down one shared. And it because the penal sentence does not decide anything exceeds it, the judged facts were not related to the controversial matter, and it was an precise aggression of her against him.
The boy is young and the fact of the existence of sentence to the ex- wife or the disputes between both ancestors in their communications or the point of contact does not seem according to the Hearing a major obstacle. Mainly, it stresses, when we are not speaking of chauvinistic violence, but of familiar violence on the part of the demanded one in front of his ex- husband. As additional data indicates that the woman already had to be on the verge of fulfilling the pains of prohibition of communication and prohibition of approach.
By the all this Room it does not find reasons not to recognize the shared safekeeping (we remember that article 80 of the Code of Leasehold Right of Aragon previous to the reform is applied to this case, that established the safekeeping shared as preferred). Consequently the resource is considered, eliminating in addition the obligation to the mother the installment of food pension in favor of the son.
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