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 / ABDUCTION
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
[email protected] or [email protected]
De Cotta Law
Tel: 00 34 952 527014
Fax: 00 34 952 523428