By Reyes Gomez, Lawyer with De Cotta Law in Nerja
Following separation or divorce of residents in Spain,
there is significant potential for conflict when one of the parents’ wishes to
take the child to live with them overseas, for example back to the UK. This
matter must be managed with great care in order to avoid committing a criminal
act
If a parent plans to move to live with the children in
another country, be aware that this requires the agreement and consent of the
other parent. This permission must be obtained unequivocally, and ideally in
writing, to avoid conflict should the other party change their mind.
In cases where it is not possible to obtain the other
parent's consent amicably, then the permission must sought in court.
OBTAINING CONSENT
In short, a parent needs the permission of the other
parent or a Court Order to take a child permanently abroad.
To maximise the chances of success with the court
granting custody and permission to take the child overseas, the case must be
professionally prepared. It is important to establish a system for visitation,
so that the other parent can have access to the child for a length of time that
reflects the geographical distance between them.
If the dispute is not legally settled in court, then
taking the child overseas without consent and a court order, without
establishing regular visitation rights for the other parent, is a criminal act,
considered child abduction or kidnapping.
CHILD KIDNAPPING
If the child is taken abroad without consent, the other
party can commence legal proceedings requesting the return of the child under
the Hague Convention of October 25, 1989 on Civil Aspects of International
Child Abduction.
Under this law, it is likely that you and your child will
be forced to return to Spain, and a formal application must be made for custody
of the child and a decision upon place of residence. During this legal conflict
both parents and the child must stay in Spain.
When considering an application for a court order, or to
challenge a court order, the most important consideration is the welfare of the
child: their new home life, education, visitation access and regular access to
both parents as these will be the issues that the court will take into account.
PROFESSIONAL ADVICE
Therefore it is highly recommended to seek permission and
address any potential conflict before leaving Spain with the child. Reaching an
agreement may cause a delay in departure, but will in the long term lead to a
much more stable and amicable solution.
De Cotta Law is a specialist in Family Law and the issues
surrounding the international relocation of children following divorce.
For more information and a private consultation, call
Sandra Wrightson on 952 527 014 or email