What is the habitual residence of a minor in an international case?

When initiating a divorce in Spain involving foreigners married abroad, one of several things that must be determined is the habitual residence of any minor children. In the following paragraphs, we’ll give an overview of European Union legislation on the topic and its interpretation by the Court of Justice of the European Union.

Determining the legal residence of a minor is very important for international family law cases. It allows you to know which judge will be competent to decide on any measure affecting the child.

The residence of a child or adolescent is primarily determined by the location of their home and their closest ties. These ties are usually determined by their school, where they access healthcare, and where they live their life in general. There are cases when it is quite clear. For example, parents who reside in the United Kingdom and decide to end their relationship by mutual agreement. In their divorce agreement, it is determined that the Spanish mother can move the residence of their son, who has dual English and Spanish citizenship, to Spain. Once they have arrived in Spain, the mother registers herself and her son at one of her properties, enrolls him in the nearest public school, and gets him a healthcare card, among other undertakings. After eight months, the father gets a job promotion with a significant salary increase. Given this change of circumstances, the mother proposes a modification of the measures agreed to at the time, to request an increase in child support so that their son can go to an international school that is more expensive. Despite the fact that the first ruling was made by a British judge, the modification must be brought before a Spanish judge following the child’s change of residence.

However, there are other cases that aren’t as clear. Suppose that the parents, both Spanish residents of Canada, decide to end their relationship, and they have a baby girl that is only months old. The father moves to South Africa in pursuit of new job opportunities. They verbally decide that their daughter will remain in Canada with her mother the first year. After the first year, they decide to spend the summer in Spain so that she can visit with her grandparents, who are all Spanish. The girl spends three months at her maternal grandparents’ house, where she is registered, while her mother returns to Canada to start a new job and her father returns to South Africa. They decide beforehand that once summer is over, the girl will go live in South Africa with her father for six months. After those six months, the father returns the girl to her mother in Spain, who returns to Canada. The mother then plans to file custody measures in the courts to formalize the situation, but she doesn’t know what country they should be filed in. In such complicated cases, it is essential to have the advice of a lawyer specializing in international family law.

At ICN LEGAL, we’re expert lawyers who are former judges with over 15 years of experience in matters of international family law.

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