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Parental responsibility consists in the rights and duties of individuals, normally the parents, or bodies corporate appointed by the Ministry of Justice or by judicial decision, concerning the person and property of a minor.
If the parents are not living together, custody and visiting arrangements are the most important questions.
Parental responsibility over minors is exercised by the parents.
If the parents are separated, divorced, have split up or are not living together, the complex of rights and duties pertaining to minors, their person and their assets is exercised by both parents in all but exceptional cases.
If the parents are living apart, the principal power belongs to the parent with whom the child is living, but on application by the other parent the judge can approve that it should be exercised jointly. This is the usual situation.
In Spanish Law other relations, persons or an institution designated by an administrative or judicial decision, as the case may be, can be appointed to exercise parental responsibility over minors when the parents are not sufficiently capable of exercising it.
If the parents divorce or separate, parental responsibility can be determined:
As an institution for the protection of a minor, parental responsibility falls to both parents.
The situation regarding the care and custody of minors can be summarised as follows:
Parents who reach agreement on matters of parental responsibility must submit a signed Settlement Agreement with all that they have agreed, which must expressly include the following in addition to other measures:
The Settlement Agreement is submitted together with the Application to the appropriate Court of First Instance, it must be ratified by the parents in Court, and after hearing the minors if they are old enough, the judge assesses the agreements.
If he deems them beneficial for the minor he approves them in the decree of separation, divorce, or definitive measures concerning the care and custody and maintenance of underage children, in cases when the parents are not married.
The main alternative measure other than judicial decision for arriving at an agreement between the parties is Family Mediation.
For any agreements adopted to acquire executive force, they must still be approved by judicial decision.
In the judicial decision the judge always has to resolve the following matters in the interest of underage children, avoiding the separation of siblings and after hearing them if they are old enough, and always in the case of those older than 12 years:
As a general rule parental authority is shared by both parents, and both parents therefore share the ability to decide and resolve all matters that affect a minor, even though only one of them may have been awarded custody.
In the event of disagreement between the parents over decisions that can or should be taken concerning an underage child, these relating for example to schooling and educational matters such as choosing a school or extracurricular activities, health care when choosing a doctor, personal training when choosing the denomination or religious training, or choosing the place or country where the minors live, etc., and when common agreement has proved impossible, either of the parents can have recourse to the Court to resolve the conflict.
After hearing both parents and the child if old enough, then without further recourse the judge attributes the power of deciding to the father or mother, and if the disagreements are repeated or some other cause arises that seriously impedes the exercise of parental authority, the judge may assign totally or partially to one of the parents the ability to decide, including sharing their functions between them. All these measures can be adopted for a maximum period of two years.
In cases when the custody of a minor is awarded jointly to both parents, in practice day to day care of and direct attention to the minor alternates for predetermined periods, which usually coincide with concrete school periods such as terms or courses.
All holiday periods are also expected to be shared between both parents.
This type of custody is not the usual one, although it is more frequent in cases of mutual agreement at the suggestion of the parents.
In matrimonial proceedings of separation or divorce by Joint Petition, the competent court is the Court of First Instance within whose jurisdiction the last joint matrimonial home, or the home of either of the applicants, is located.
In contentious matrimonial proceedings the competent court is the Court of First Instance at the location of the conjugal home, and if the spouses are resident in different judicial areas the plaintiff can choose between the court covering the last matrimonial home or the court where the defendant is resident.
In proceedings that exclusively concern the care, custody and maintenance of underage children, in which the parents are not married to one another, the competent Court of First Instance is that at the location of the last common residence of the parents, and if they live in different judicial areas the plaintiff can choose between the court covering the residence of the defendant or that at the residence of the minor.
The procedures applicable in such cases are the following:
In cases of emergency the adoption of measures by the following procedures can be called for:
It is expressly provided that if there is cause for urgency, the measures in the first decision
pronounced can be adopted, with immediate effect.
The benefit of total or partial legal aid can be obtained, provided that the conditions of entitlement thereto are satisfied in accordance with the Legal Aid Act (See “Justicia Gratuita – España”).
To know whether decisions can be appealed, distinctions must be made between all the possible decisions relating to matters of parental responsibility, namely:
In cases when judicial decisions on parental responsibility are not complied with voluntarily, an application can be submitted to the Court of First Instance that made them, by presenting an executive demand for the enforcement of the measure or measures not complied with.
The sentence or decision whose fulfilment is demanded, and the person against whom enforcement is to be carried out, are identified.
Decisions pronounced in a Member State on the exercise of parental responsibility in matrimonial proceedings concerning a common child, which were implemented in the said Member State and which have been notified, are recognised in Spain at the request of any of the interested parties without the need for proceedings, pursuant to the provisions of Council Regulation No 2201/2003 of 27 November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility.
To request enforcement an executive demand must be presented, necessarily by an Attorney and Procurator, with a copy of the decision whose implementation is sought, together with all the requirements for determining its authenticity, in accordance with the standardised form given in Annex V, before the Court in the area where the minor is located and implementation is demanded.
For cases not covered by the above Regulation, relating to parental responsibility for extramarital children, whereas the current proposed Council Regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility (Official Journal of 27 August 2002) is not yet in force and applicable, such decisions are recognised by the general rules of the executive authority and can be implemented once recognised in accordance with Spanish Law.
To oppose in Spain the recognition of a decision on parental responsibility adopted by another Member State, the interested party must apply to the Court of First Instance to which the request for recognition has been made and plead the existence of any of the reasons for the denial of recognition provided for in Regulation 1347/2000.
The reasons that can be pleaded are: that the decision is manifestly contrary to public order, that no opportunity was given to hear the child, when it was made by default and the application document was not submitted or notified because it was believed that the decision was acceptable, or if it impedes the exercise of parental responsibility and there has not been an opportunity to be heard, or if it is incompatible with another decision pronounced later.
The law applicable in parental responsibility is the law applicable to the person of the minor, and if this cannot be determined, the law applicable in the minor’s usual place of residence.Top
Last update: 20-10-2006