Child Custody
In the event that the parents separate, divorce, split up or do not live together, all the rights and duties regarding minors, in relation to their persons and their property, belong to both parents, except in exceptional circumstances.
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How child custody in Spain works
If the parents divorce in Spain, parental responsibility and child custody will be set in one of these documents:
- At the request of both parents, in a Regulating Agreement (convenio regulador), which must be approved by the courts;
- By a court decision, in contentious proceedings.
If you are having issues understanding your rights as a parent in Spain, this information might be helpful for you. According to Spanish civil law, there are two different concepts: custody and parental authority.
Custody refers to the effective time that the children spend with their parents, and Parental authority is usually referred to as ‘patria potestad’.
It includes the following obligations:
- Looking after the children, being with them, feeding them, educating them and ensuring that they receive a well-rounded education.
- Representing the children and administering their property.
- Making all the relevant decisions regarding the type of education, moral views and health/medical decisions.
If the parents live apart, usually, custody in Spain will be exercised by the parent with whom the child lives and parental authority in Spain will be exercised by the two parents.
If the parents do not reach agreement on the specific type of custody in Spain, it will be decided by the judge on a case-by-case basis, in accordance with the best interests of the children.
In order to determine the jurisdiction in Spain or court in which to lodge the petition, it is necessary to study the particular circumstances on a case-by-case basis. However, the general applicable criteria is the Court of First Instance of the place of the parents’ last shared residence.
What do you need to know on child custody in Spain?
What factors are considered when determining child custody in Spain?
Custody can be in favour of one of the parents exclusively or it can be shared custody in favour of both parents. In order to determine custody, different circumstances are taken into account such as the availability of the parents to take care of their children, the work of the parents, whether the addresses are close or not, the children’s school and proximity to the parents’ home, etc.
What types of custody arrangements are available in Spain?
In Spain, there is guardianship and custody in favour of one of the parents and shared guardianship and custody between the two parents, when the children live with one and with the other parent alternately for the same period of time each month.
What is the process for obtaining custody of a child in Spain?
If there is a marriage, the judicial proceeding is the divorce proceeding. If there is no marriage, the judicial proceeding is the so-called custody and maintenance proceeding.
Can a parent relocate with a child without the other parent's consent in Spain?
Children can only relocate with the agreement of both parents.
If there is a divorce decree that establishes custody in favour of one parent with visitation rights of the other parent, or joint custody, neither parent can move with their child without the consent of the other parent. In this case, the parent who wants to relocate with his or her child must initiate proceedings for the modification of measures in which a judge will decide whether it is in the best interest of the child to relocate or not.
If one parent chooses to leave with the child without getting the consent of the other, it is possible to start an urgent child abduction process.
How is child support calculated in Spain?
The calculation of the maintenance allowance takes into account the child’s school expenses, living expenses and the child’s food, clothing and pharmacy expenses. In addition, the income of the parent who has to pay child maintenance is taken into account.
What happens if a parent violates a custody or visitation order in Spain?
The other parent may initiate judicial proceedings to enforce custody and visitation rights, provided that there is a court judgment of a divorce or child custody that confirms those rights.
How does joint custody work in Spain?
In a mutually agreed divorce proceeding, joint custody can go ahead as agreed by the parents.
In contentious divorce proceedings, joint custody is fixed by the judge and usually exchanges take place every other week, on the same day of the week.
Each parent gets a share of a school year and holidays, and the shifts usually change every other year (for example, if one year the children stay with the mother for Christmas, the following year they will stay with the father).
Can a non-Spanish parent obtain custody of a child in Spain?
Yes, a Spanish court can award custody of a child to a non-Spanish parent, if it considers it to be the best interest of the child.
What is the role of the Spanish court in child custody cases?
The Spanish courts look after the welfare and interests of children who are minors when they establish the custody of a child who is a minor in favour of one or the other parent or in favour of both parents on a shared basis, they also decide what alimony applies.
How can a parent modify a custody arrangement in Spain?
In order to modify a custody agreement in Spain, a modification of measures procedure must be carried out, either by mutual agreement if there is agreement between the parents, or contentious, by filing a lawsuit for modification of measures if there is no agreement.
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