If a child moves to Spain, can the Spanish courts modify family measures issued in another EU country?

Conflicts arising from a divorce involving a Spaniard and a foreigner in Spain, or analogous situations with international elements, can lead to difficulties related to jurisdiction when the former spouses settle in different countries. If measures related to minor children are a common source of disagreement, what happens in situations involving a minor for whom measures were determined in their previous country of residence who has now moved to Spain?

In the event that the existing measures were decreed by another European Union (EU) Member State, ample existing regulation lays the foundation for clear resolution of any jurisdictional conflicts that may arise in this area. Even so, highly complex cases can arise, such as the case brought before the Court of Justice of the European Union (CJEU) in February 2017.

The case involved a couple consisting of a Lithuanian citizen and a Dutch citizen who formalized their divorce in Canada. The Canadian courts had granted custody of their shared child to the mother, who returned to the Netherlands to live with the child. Nevertheless, neither the Lithuanian nor Dutch courts recognized the Canadian ruling. The Lithuanian courts issued a ruling with measures regarding child support and visitation that was unsuccessfully appealed by the father. The following year, the Dutch courts ruled establishing different child support payments, with both countries ignoring what the other had determined.

Therefore, the father appealed to the Lithuanian courts to recognize the measures subsequently established in the Netherlands, even though the Lithuanian ruling was already final. The Baltic country’s courts ended up referring the matter to the CJEU. This court’s ruling sets an interesting precedent by establishing how European regulations concerning jurisdiction, enforcement and decisions in matters of parental responsibility [Regulation (EC) No 2201/2003] and concerning maintenance obligations [Regulation (EC) No 4/2009] should be interpreted.

The CJEU ruling indicates that “the courts of the Member State which made a decision that has become final concerning parental responsibility and maintenance obligations with regard to a minor child no longer have jurisdiction to decide on an application for variation of the provisions ordered in that decision, inasmuch as the habitual residence of the child is in another Member State. It is the courts of the Member State of habitual residence that have jurisdiction to decide on that application.”

Thus, in the case at hand, the Lithuanian courts were denied the jurisdiction to make any decisions regarding application of the measures subsequently decreed in the Netherlands, because the Dutch courts were the only jurisdiction competent to resolve this matter since the child’s habitual residence is in the Netherlands.

In short, at ICN LEGAL, we want to highlight that this ruling establishes the ability of the Spanish courts to decide on the possible modification of measures previously issued in another EU country when they affect a minor whose current place of residence is Spain.

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