In Spain, a parent’s decision-making power is known as patria potestad and is defined as “parental responsibility”, always exercised in the children’s best interest according to their personality and respecting their rights and physical and mental integrity. This function comprises the following duties and rights:

• to take care of them, accompany them, feed them, raise them and provide them with a comprehensive education; and
• represent them and manage their properties.

Parental responsibility is explained in Article 154 of the Civil Code and therefore all main decisions related to the child’s life, such as medical and psychological treatments, the school the child is enrolled in, religion issues, etc, must be agreed by both parents.

Article 156 of the Civil Code states that both parents have the same parental responsibility and they must agree on these matters concerning their child. In case of dispute, any parent can issue an urgent proceeding and the judge, after having heard both parents and the child (mandatory for children older than 12 years), will render an order stating which parent can decide in the specific matter. If the parents’ disagreements continue, the court can order that one parent will have the decision-making power regarding the child’s wellbeing, but not for a period longer than two years. Setting the child’s place of residence is a parental responsibility matter under Article 156 of the Civil Code.

The proceeding under Article 156 of the Civil Code on parental responsibility disputes is a quick and urgent proceeding that will be heard in a couple of months. In some cases the court can consider that international child relocation is a very important matter and will invite both parents to file a child’s internal relocation application issuing normal proceedings on family matters that usually take about one year.

It is really exceptional to be deprived of parental responsibility; the common scenario is to stop contact with the children, but in cases of neglecting the care of the children, not fulfilling the duties of Article 154 of the Civil Code, committing domestic abuse upon the spouse or/and children, etc, one parent or both of them can be deprived of parental responsibility by a court order according to Article 170 of the Civil Code.

The birth mother does not have to meet any requirement to obtain parental responsibility. She will obtain parental responsibility by operation of law, when her name is inscribed on the child’s birth certificate.

The father will obtain parental responsibility by operation of law as soon as his name is inscribed on the child’s birth certificate. If the parents are not married, the father must complete a form at the Civil Registry requesting to be inscribed as the child’s father on the child’s birth certificate, with the mother’s consent.

A non-genetic parent requires a court order in order to obtain parental responsibility.

Surrogacy is illegal in Spain, but the foreign court order that grants parental responsibility to a surrogated father or mother can be recognised by the Spanish courts to protect the best interest of the child that has been born by surrogacy abroad.

If the parents are married and only one of them is the surrogated father or mother recognised in the court order, the other spouse can adopt the child born by surrogacy abroad.

There is a legal presumption that the husband is the father of the child, according to Article 116 of the Civil Code.  Unmarried parents are equally treated as married parents in relation to parental responsibility.

The process of obtaining parental responsibility is not different in circumstances where the parents are in a same-sex relationship. The parents will have to meet the requirements of non-genetic parents or adoptive parents.  Spain recognises adoption by same-sex couples.

At least one of the adoptive parents must be older than 25 years of age and the age gap between the adoptive parent and the child must be between 16 years and 45 years. The adoptive parents must obtain a certificate of suitability.

A child older than 12 years must consent to the adoption, as must their genetic parents if they have not been deprived of parental responsibility for their child.

The court order will grant the adoptive parents parental responsibility in the child’s best interest.

Both parents must consent to the child’s international relocation; it is advisable to have written consent.

In case of disagreement, the court of the child’s habitual residence must render a court order authorising the international child’s relocation.

The requesting parent must lodge a petition to obtain the child’s international relocation authorisation by the court. Parental responsibility and child custody proceedings will be issued and the relocation will be resolved by a court order. Relocation will be heard in a modification of children’s arrangement proceedings, if an order on parental responsibility has already been rendered by the court.

Internal relocation orders are more common. The factors taken into account by the court to make a decision on a child moving to a different part of Spain are: the child’s best interest; the distance between the former and new residence which would facilitate the other parent to meet the child; better employment opportunities for the parent who wants to move, as well as wider family support in the new place.

The main ground to allow relocation in Spain is a better job with better financial prospects for the custodial parent when the earnings of the left-behind parent are not relevant and it would provide a better standard of living to the children.

Other factors are the distance between the left-behind parent and the new home, the existence of wider family support in the new residence, etc.

It is unlawful to take a child out of Spain without both parents’ consent. The left-behind parent can issue Hague Convention proceedings to request the return of the child to Spain at the family court of the country where the child has been abducted.

Spanish criminal courts usually request that, if a child was abducted in breach of parental responsibility through a court order, the removal from the jurisdiction be considered a crime in terms of Article 225 bis Código Penal.

If there is a real a risk that the common child can be abducted out of Spain, it is advisable to apply for the very urgent measure proceedings of Article 158 of the Civil Code to forbid the child to leave Spain, without the judge’s authorisation, and to retain the child’s passport at court. The court will order the Spanish police to check that the child does not leave Spain and that the child cannot get a passport.

If a child has been removed from Spain without the relevant consent, the left-behind parent must immediately inform the Spanish Ministry of Justice to issue a return application proceeding of the Hague Convention. The Spanish Ministry of Justice is the Spanish Central Authority, which is located in Calle San Bernardo, 62 in Madrid (E-28071), email: sustraccionmenores@mjustica.es, telephone: +34 91 837 22 95.

A child’s return application must be also lodged in the country where the child has been abducted. In case the child has been taken to a country which is signatory to the Hague Convention, the Central Authority of the country must be engaged to co-operate in returning the child to his habitual residence.

It is also recommended to file a petition to formally declare the unlawful removal of the child at the Spanish court of the child’s habitual residence. The proceeding to declare the unlawful removal of the child from Spain is explained in Article 778 quáter of the Law of Civil Procedure.

If the child was abducted in breach of a court order on parental responsibility, a criminal complaint can be filed at the Spanish police to obtain Interpol co-operation in the country where the child has been abducted, in accordance with Article 225bis of the Criminal Code.

Spain is signatory to the 1980 Hague Convention.

• The Spanish Central Authority will provide free legal advice to the parent of the abducted child. The parent of the abducted child will be legally represented at court by a civil servant lawyer appointed by the Central Authority. The public prosecutor (Ministerio Fiscal) will be part of the proceedings to defend the child’s best interest.
• The rule is that Spain applies the underlying principle of the Hague Convention of the immediate return of the child. Children’s return applications are dealt with quite efficiently by the Spanish courts. The family court of the child’s residence will have jurisdiction.
• If the child has been abducted to a non-Convention country, the left-behund parent must immediately inform the Spanish Ministry of Foreign Affairs and the Spanish Embassy in that country. A child’s return application must be lodged in that country according to its law. A local lawyer in the non-Convention country must be engaged to represent the left-behind parent at the court of the country where the child has been abducted. If a criminal complaint has been filed in Spain, Interpol co-operation must be engaged.
• The parent of the abducted child will be represented at the Spanish court by a civil servant lawyer and therefore will not have to pay any expenses. The average time scale for applications under the Hague is about three months, with the appeal to the Higher Court (Audiencia Provincial) included.

Not applicable as Spain is a signatory to the Hague Convention.