Flora Calvo works at Winkels Abogados law firm and lectures in Private International Law at Rey Juan Carlos University in Madrid.
Does the custodial parent have the right to unilaterally amend the minor’s residence abroad?
20 March 2016
The number of cross-border marriage cases in Spain has seen an increase in recent years, not only in the European framework, but also worldwide. If internal cases already incite countless problems, they are increased upon the incorporation of different national legislations which deal with different concepts regarding, for example, parental authority or the scope of custody rights of the parent to whom full custody has been granted.
The most burning issue is condensed into one question: Does the custodial parent have the right to unilaterally choose the residence of the minor when it concerns permanently relocating said minor to another country?
Within Spain the answer to this question would be a clear no, given that the right to choose the residence of the minor corresponds to the shared parental authority of the parents even though custodial rights are exclusively allocated to one of them.
This statement is supported by an important judgement of the Supreme Court of 11 December 2014 stating that, in the event of disaccord between the parents, authorisation is required to change the minor’s residence from one city to another within Spain, which shall only be granted if it is within the best interests of the child.
UNCERTAINTY IN INTERNATIONAL CASES
Uncertainty is raised in international cases when, for example, the mother, a Swiss national, who has been granted full custody of the child in legal proceedings, wishes to unilaterally change the child’s residence from living with her in Spain to a fixed residence in Zurich. In this case, Spanish legislation is not applicable, but rather the 1980 Hague Convention on the civil aspects of international child abduction, of which both countries are members, which in article 5 states that: «rights of custody» shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.
Does this article imply that the Swiss mother cannot legally change the child’s residence from Pontevedra to Cadiz within Spain but indeed from Pontevedra to Zurich without the father’s consent or legal authorisation?
In theory, yes, as it is impossible to be interpreted, like several lawyers have tried to do, given that in the Hague Convention the term ‘custody’ actually means parental authority and the custodial parent is not legally entitled to unilaterally decide to relocate because this decision actually corresponds to parental authority and not custody.
In any case, the issue is anything but amicable; in fact, the case law of the convention’s member states is divided (even within each one of the states) on whether or not this behaviour constitutes as abduction by the custodial parent. In Spain, for example, it is not considered abduction in the Judgement of the Provincial Court of Madrid of 25 April 2012 and the Judgement of the Provincial Court of Barcelona of 2 October 2012; whereas the same conduct is deemed as abduction in Provincial Courts of Tenerife of 1 June and 12 May 2008.
Can the parent with full custody therefore take a risk without authorisation and change the child’s residence to another country? That decision would be by no means simple, given that, on several occasions, those who thought to be legally protected by the convention suffered grave consequences for their actions.
A prominent example is the unfortunate case of María José Carrascosa who has just served 8 years in an American prison after relocating her daughter to Spain without authorisation from the father or the American authorities despite being the custodial parent.
Regardless of the various theoretical interpretations of the case, the common trend in current case law requires authorisation for a permanent relocation, either from the other parent or via legal channels, which is only granted by the courts if they consider it to be in the best interests of the child (in Spain: Judgement of the Supreme Court of 20 October 2014).
In fact, in Spain, Law 15/2015 of 2 July on Voluntary Jurisdiction, which amended the entire system established by the Civil Procedure Law to return minors, introduced the «Declaration of wrongful international relocation or retention» in order to avoid interpretative problems, whereby anyone who is interested in finding out if a child has been unlawfully relocated may request the declaration from the competent legal authority.
This declaration may be submitted to the competent authorities of the foreign state to which the child has been relocated. The relevant authorities will have a document that determines if the relocation is considered unlawful by the authorities in Spain and how to act accordingly.