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International Contact and Access Arrangements

In international family proceedings, i.e. those involving foreign elements, which are processed in Spain and in which the custody of a child is in dispute, one of the main problems that arise is that of international contact and access arrangements. It is an essential right of the common child to have maximum contact with his or her parents (both when the parents are of the same sex and when the parents are of different sexes), even if he or she has to live with only one of them.

This is the case both in custody proceedings that take place within one country, for example Spain, and in international custody proceedings that take place in two different countries, one of which is Spain.

If in a divorce with foreign elements that is processed in Spain and concerns international parental measures, one parent has custody of the child in one country and the other parent who lives abroad only has right of access, a problem arises that must be resolved, either in the regulatory agreement that is drafted by the parents when the procedure is by mutual agreement, or in the judicial decision on custody and visitations that is drafted by a judge for the parents when the divorce is contentious.

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International contact and access arrangements

What does the term “contact and access arrangements” refer to?

The international child custody and visitation regime is a special regime, different from the custody and visitation regime within Spain.

The specific arrangements depend on the distance at which the parents live. If the parents, the custodial parent and the non-custodial parent, live in the same city in Spain, visits will normally take place during weekdays and every other weekend. If one of the parents, on the other hand, lives in a foreign country, Visits will need to be arranged differently, in Spain or abroad.

Thus, for example, within the European Union, the non-custodial parent will be able to visit his or her child more frequently, in Spain or in another EU country, every fortnight or one weekend a month. If the parents live even further apart, visits will be less frequent but longer and the non-custodial parent will be able to enjoy a greater number of holidays during non-school periods and preferably during the summer period

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International contact and access arrangements

Is an international shared custody possible?

Shared custody of the child is a regime that can only be properly implemented if both parents live in the same city and within a reasonable distance. Shared custody as such is practically impossible to be agreed in Spain when the parents reside in different countries.

On occasion it has been judicially agreed that the parents could develop this custody of the child for alternate years (i.e., for example, even years in the foreign State and odd years in Spain). This type of custody regime is devastating for the children, who are forced to change their educational system, friends, culture and environment on a regular basis.

A different situation is when the parents agree that the child can study for a few years in Spain and then move to another country, for example the United States when he or she is a teenager, in order to be able to access a university education. For the judge to agree to establish such a regime between Spain and a foreign country, a careful case-by-case analysis must be carried out to verify that the common children are prepared for this time-sharing arrangement and that it will be beneficial for their education and their correct development as a person and their way of life.

In addition, in situations where one parent has to move to another country for work, it is essential to consider how this will affect the stability of the child. Constant change can negatively impact their ability to live a balanced childhood and adolescence. It is essential that the child’s well-being and ability to adapt to living in different cultural and educational environments are legally prioritized.

International contact and access arrangements

What can be done to ensure that the rights of access are respected internationally?

Enforcement of custody orders with cross-border right of access for a parent is a complex issue. Within the European Union, enforcing right of access for a parent residing in Spain or another EU country when the child is residing in another EU member state is feasible through EU Regulation 2019/1111 on international jurisdiction, recognition and enforcement of judgments in family matters (matrimonial property disputes and custody) and international child abduction.

This rule establishes a privileged regime for the enforcement of decisions on contact and access arrangements. A parent who  is prevented from visiting their child by the other parent can apply in Spain or in another EU Member State for direct, rapid and privileged enforcement of the decision establishing a visiting arrangement. If the case involves a non-EU State, enforcement of visitations both abroad and in Spain is more complicated, although there are international conventions and domestic rules that make this possible, such as the1980 Hague Convention on the Civil Aspects  of International Child Abduction, which also refers to the enforcement of access rights in respect of children.

International contact and access arrangements

Lawyers for International Access and Contact Arrangements

In family proceedings with a cross-border element, it is absolutely essential to have specialised lawyers who combine in-depth theoretical knowledge with practical litigation experience in court.

At Winkels Abogados we have a team that meets the characteristics described above. Thus, our litigation lawyers are permanently advised by our academic consultants, professors of International Private Law at the Universidad Rey Juan Carlos de Madrid. These two professors are experts in international family law and are familiar with all the EU regulations and directives that affect these matters, as well as the specific domestic laws that allow these rules to be applied.

The approach to each case with a cross-border element is unique and the problems and their treatment are different. Knowing the international rules and their correct application is essential to be able to successfully handle a case of these characteristics and at Winkels Abogados we have the professionals that distinguish us from other law firms and that increase the chances of success in the legal proceedings we undertake.

The approach in cases with foreign elements is vital because when children are involved, time runs against the parent who has been deprived of his or her rights. Identifying the applicable law and determining the most effective procedure or strategy.

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