It is quite common to hear about separated parents living in different countries where one parent denies the return of a child after a temporary parental visit. Spain protects parents who have child custody and who are residents in Spain through their national laws, international agreements and bilateral agreements between countries. In particular the Organic Law 9/2002, of the 10 December; The Hague Convention on the Civil Aspects of International Child Abduction signed on the 25th October 1980; The European Council agreement related to judicial decisions for the custody of minors of the 20th May 1980 and the bilateral agreement between Morocco and Spain related to the enforcement of judicial decisions concerning the custody and the return of minors of the 30th May 1995. The latter was deemed a necessity due to the amount of legal cases regarding the return of children abducted by parents during visits to Spain or Morocco.
What is child abduction?
Spanish law is clear about what child abduction is, and it takes these cases extremely seriously:
- The removal of a child from their place of residence without the consent of the parent with whom he usually lives or the people or institutions in whose care the child was entrusted.
- The retention of a child in serious breach of an established judicial or administrative decision.
The penalty can be from 2 to 4 years of imprisonment plus the loss of the right to parental authority (patria potestad) for 4 to 10 years.
If the abducting parent informs the other parent or the institution in charge of the child, of their exact location with the promise of immediate return, there will be no charges as long as the period of abduction is less than 24 hours.
International visitation rights
A parent who is a resident in Spain and who receives a request for visitation rights from the other parent in a different country has to legally comply with the request as long as it conforms to the divorce or separation agreement (convenio regulador). The situation can be a terrible dilemma for the parent with custody if they suspect that the other parent will not return the child. In this case a Spanish lawyer experienced in International Family Law should be consulted immediately.
Claiming the child back
For countries outside the international conventions cited above, once the child is abducted it might be difficult to legally force the authorities of the other country to return the child. For countries complying with the treaties above there is a legal route which must be followed to get the child back but the amount of time for the return can vary greatly. The UK, New Zealand and Australia for example will return the child very quickly.
In cases of abduction, time is of the essence. If the child is out of Spain for more than a year, the judge in the visiting country could stop the return process if the other parent can demonstrate that the child has integrated perfectly in their new environment.
If one of the parents suspects abduction it is important to immediately consult a Spanish lawyer, who is experienced in International Family Law, in order to preventively evaluate all options; even more importantly when abduction has already taken place, to be able to explore all possible legal ways for the safe return of the child.