On this occasion, we’re going to address a key issue related to foreigners married abroad divorcing in Spain. What happens if you have minor children and one of the spouses wants to return to their country of origin with them? What tends to be the direction of court decisions in these cases?
The truth is that when faced with a disagreement between the parents, it is difficult for a judge to allow for the change of residence of minor children who are already residing in a specific country, unless they aren’t settled there yet.
When the court decision or regulatory agreement doesn’t include any provisions regarding a possible change of residence to a foreign country, several situations can occur:
1. The decision may be considered to be the right of whoever has sole custody, regardless of the consent of the non-custodial parent or court authorization (Art. 19, Spanish Constitution).
2. It may be understood that the matter falls within the scope of the joint exercise of parental authority, making it dependent on such consent or authorization (Art. 154 and 156, Spanish Civil Code).
3. A mixed solution may be adopted so that the custodial parent may or may not make this decision unilaterally. This will all depend on whether the move will affect the other party’s visitation schedule.
As you surely know, Article 19 of the 1978 Spanish Constitution establishes the right to freedom of movement and residence. However, we can’t use it as a reference in these cases. In these kinds of divorces, the custodial parent’s ability to change their residence without having to request court authorization is not questioned. What is questioned is the custodial parent’s right to unilaterally change the residence of their minor children, especially when it involves a foreign country.
Although the Spanish Constitution speaks of freedom of movement, it also establishes the principle of the protection of family and childhood. It does so by putting a child’s rights before their parents’. For that reason, we insist at ICN LEGAL that if the judge believes that a move may negatively affect a child’s education and overall development, they won’t allow it. In addition, sole custody does not cover the entire scope of parental authority, but only ordinary matters, and not those of greater importance (place of residence, for example). We advise you to consult with our lawyers who are former judges if you find yourself in this international family law situation.