The Spanish courts have always had jurisdiction to decide on matters affecting children who are habitually resident here. However for many years this did not necessarily mean that Spanish law would be applied to decisions about custody, visits and maintenance as the matters were often decided under the law of the child’s nationality. Since the introduction of European Regulations on the law applicable to children the Spanish court will apply its own law to questions about the child’s welfare. The payment is decided in the country where the creditor ie the parent who is owed for the maintenance is habitually resident. Therefore a mother or father owed maintenance in Spain needs to apply to the Spanish court.
Best Interests of the Child
For example if the parents cannot agree about custody and about the level of maintenance payable the Spanish court will decide based on the best interests of the child. Both parents automatically have shared parental responsibility. This means they should be involved in decisions about the child’s education, health care and general well being. However this is not the same as having joint custody which decides on whether the child should live with one parent but have regular contact with the other parent. If the parents cannot agree and the Judge has to make the decision the standard or “default” regime for the parent without custody in Spain is every other weekend, 4 weeks in summer and alternate Christmas and Easter holidays.
Where the parents live in different countries this can be adapted to take account of the travel needs and additional costs involved. In most cases the parents agree on their own pattern of visits and custody but it is important to realise the court will always protect the parent who does not have custody in requiring regular contact and the fixed regime brings certainty to the children who will have a routine.
In some regions of Spain such as Valencia the courts do prefer to see joint custody which does not necessarily mean exactly 50/50 of the time with each parent but may mean 3 days with one parent and 4 with the other or alternating weeks. This is always provided the court can see it is in the best interests of the child and is a positive and stable outcome. There are some pressure groups now fighting for joint custody for all parents but until now there is no national legislation though there are consultations proceeding.
For more information:
Please contact Sandra Wrightson on [email protected] if you would like to make an appointment with one of the family lawyers or call +34 952 527014 to discuss your matter.