Spain

How can you prepare child relocation from or within Spain? What if your child has been relocated without your consent?

Spain is a member of the Hague Convention on Child Abduction.

Spain is part the European Union. The judgments of the European Court of Justice apply.

The Council Regulation (EC) No 2019/1111 of 29 June 2019 (Brussels II ter) is valid in Spain.

We will explain what that means for your options.

Country Reporter:

Adriana de Ruiter

Adriana is founder of Tulp Abogados and expert in resolving family conflicts in an international context, in- and out of court.

She is chair of the Board of ASIME, the Spanish Association for International Child Abduction.

Adriana has volunteered to keep this page about Spain up to date.

Lawyers and mediators in Spain

We provide a list of lawyers and mediators in Spain who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.

Find a lawyer or mediator

Parental authority: Spain

Authority

Parental authority in Spain is granted by operation of law to both parents regardless of whether they are married or not. In Spain parental authority (“patria potestad”) includes the rights and duties of parents (or institutions if parents have been deprived of their authority by the judge) concerning the protection and taking care of the minors. The most important decisions of parental authority are about the place of residence, education and medical treatment. The custody rights as referred to in art. 3 and 5 of the The Hague Convention 1980 are included in the parental authority and should not be confused with the custody rights parent might have according to Spanish law after divorce or separation (a.o. Article 39.2 of the Spanish Constitution and articles 92 and 154 of the Civil Code).

After divorce or separation, parents normally retain joint parental authority, including the right to decide the place of residence. The custody, understood as the daily care of the child, can be joint, or be granted to one of the parents, with visiting rights for the other. The joint custody is supposed to be the best option for the child, unless the circumstances advice otherwise. The parent with sole custody does not have to right to change the habitual residence, as this decision falls into the scope of parental authority.

Traveling with children: Spain

If you want to travel abroad with your child, you may need permission from the other parent. You can use the permission form from the Spanish Police.

Child relocation: Spain

Substitute permission

If a parent wants to move with the children and the other parent with parental authority refuses to give permission, the parent who wants to move can request permission from the court.

It is no easy to obtain permission to relocate. The deciding criteria is the best interest of the child. Matters as need for relocation of the parent, ways to maintain contact with the non-relocating parent, the age of the child, the availability to take care of the child, the wishes (according to the age) will be considered, as well as the integration of the child in his or hers environment.

Child abduction: Spain

Hague Convention

Spain is a party to the Hague Convention on Child Abduction. The restitution proceeding is included in the Civil Prosecution law (Ley de Enjuiciamiento Civil articles 778 quater- sexies).
Besides the Hague Convention, Spain also signed a bilateral Convention with Morocco, on May 30th, 1997, on judicial assistance, recognition and execution of judicial resolutions in matters of right of custody and right of visit and return of minors.

Government

For more information, you can contact the Central Authority This is a first point of contact if you want your children to be returned.

They will forward your request for the children to be returned to the other parent to seek a voluntary return. If the parent opposes or doesn’t answer, the Central Authority will ask the State lawyer to present the return application at court. However, you are not obliged to contact the Central Authority first nor to continue the proceeding with the State Lawyer. You can also contact a private lawyer to apply for restitution at court.

Court procedure

In Spain the restitution proceedings will be handled by the Family Courts of the capital of the province where the child is retained.

The Spanish law respects the period limits of the Convention and prescribes the proceeding to take place in a maximum period of 6 weeks. In practice, if the place where the child is located is known, the procedure in first instance will take around 2 weeks. The appeal can take more time, as well as the execution. Complications arise when the abducting parent cannot be found.

Child participation

The court will decide in each case if the child will be heard by the court. Children from the age of 12 have the right (not the obligation) to be heard. Younger children can be heard by the court if the child is mature enough.

The child interview by the court is not the only way a child’s opinion can be heard. There can also be a report prepared by an independent expert.

The Public Prosecutor’s Office, defender of minors, will always act in all processes that affect minors.

Mediation

Mediation is possible in Spain through the regular mediation facilities. The Central Authority can provide information about this possibility and the court procedure can be suspended during the mediation. The mediation has to be very quick in order to avoid delays in the proceeding.

Execution

The appeal of the parent suspends the execution of the return order.

Prevention

If you think your child is in Spain, but you do not know exactly where, you can ask the Central Authority to help you to find the child.

If you fear that your child will be abducted from Spain to another country, you can ask the judge various measures:

• child’s passports to be deposited with judicial authorities
• obtain orders to prevent the removal of the child
• issuing prohibition to leave the country orders, with border and/ or port alerts.

Legal aid

The applying parent in the return proceeding can be defended by the State Lawyer, if the application was done to the Central Authority, or by a private lawyer.

For more details: check the country profile of Italy on the website of HCCH.

Criminal law : Spain

Criminal law

Parental child abduction can be a criminal offence in Spain, depending on the circumstances of the case. This can be punished with imprisonment or with a special disqualification for the exercise of the right of parental authority.

Relevant websites : Spain

Consent form for traveling with a child

www.guardiacivil.es : permission form

Central Authority

www.mjusticia.gob.es : Ministry of Justice

Organizations:

www.asime.org : All about child abduction and prevention

Blogs about Spain

International and domestic relocation from Spain

Jun 1, 2023

INTERNATIONAL AND DOMESTIC RELOCATION By Amparo Arbaizar It is very difficult to obtain a relocation order by the Spanish Courts, especially if one of the parents is Spanish and therefore the child is Spanish too with an extended family living in Spain. It is uncommon...

Request for child relocation under Spanish law

May 12, 2023

Request for child relocation under Spanish law What is the appropriate procedure to request a relocation of a child under Spanish Law? 1. Civil Procedural Scope In Spanish procedural Act there are two different procedures to request a relocation. In principle...

La defensa del menor en los procedimientos de restitución en España

Dec 12, 2022

La defensa del menor en los procedimientos de restitución en España En el ordenamiento jurídico español no se conoce la figura del “tutor ad litem” en los procedimientos de restitución ni en otros procesos familiares, como medidas de responsabilidad parental. Esto no...

More Blogs about Spain