How to prevent international child abduction by parents in Spain
In family disputes involving international elements, the risk of international child abduction can become a pressing concern, particularly when one parent pretend unilaterally remove the child from Spain without the consent of the other parent. Article 158 of the Spanish Civil Code provides an essential legal framework to protect minors in situations of this potential danger.
What Does Article 158 of the Spanish Civil Code Say?
Article 158 empowers the courts to adopt urgent protective measures to safeguard the best interests of the child. These measures can include preventing the child’s removal from Spain if there is a credible risk of abduction. Specifically, it allows a judge to:
- Prohibit a parent from taking the child abroad.
- Order the retention of the child’s passport or prevent the issuance of a new passport.
- Notify border control authorities to restrict the child’s travel.
This article aims to ensure the child’s welfare and stability while balancing the rights and responsibilities of both parents.
Case Example: A Parent’s Fear of Abduction
A married couple has been living in Valencia, Spain, for five years, although they are originally from Switzerland, where their child was born. The couple is in the process of divorcing and negotiating the terms of a custody agreement.
The mother is seeking sole custody of their child and plans to return to Switzerland with the child. The father, however, is advocating for shared custody and wishes to continue living in Spain.
During this time, the father discovers that the mother has secretly purchased plane tickets for herself and their child to travel to Switzerland, with no intention of returning to Spain. Alarmed by this discovery, the father fears that the mother might unilaterally take the child out of Spain, permanently severing his relationship with the child and disrupting the child’s stability and connection to their life in Valencia.
In this scenario, the father can invoke Article 158 to seek urgent legal protection. The following steps illustrate the process:
Steps to Follow in Cases of Potential International Child Abduction
- File an Urgent Request for Protective Measures
The concerned parent must file a petition with the Family Court (Juzgado de Familia), outlining the specific risk of abduction. Evidence, such as messages, emails, or flight tickets, demonstrating the other parent’s intention to leave Spain without consent, should be presented. - Request Immediate Preventive Measures
The petitioner can request the court to adopt precautionary measures, including:- Prohibiting the child from leaving Spain.
- Retaining the child’s passport.
- Informing police and border control authorities to monitor any travel attempts.
- Hearing and Resolution
The Family Court will evaluate the evidence and may convene a hearing to hear both parents. In cases of imminent risk, the court can issue a temporary injunction before the hearing to prevent immediate harm. - Enforcement of Measures
Once the court issues its decision, the relevant authorities, including police and immigration control, are notified to enforce the restrictions.
Why Timely Action is Crucial
Time is of the essence in such cases. A delay in seeking legal protection may result in the child being removed from Spain, making recovery significantly more complex. Spain is a signatory to the Hague Convention on International Child Abduction, which facilitates the return of abducted children. However, the legal process can be lengthy and emotionally draining. Preventing abduction through Article 158 is far more effective.
Protecting Your Child’s Best Interests
In family disputes involving international elements, the child’s welfare must remain the priority. Article 158 of the Spanish Civil Code is a powerful tool to prevent international child abduction and ensure the child’s safety. If you suspect that your co-parent may attempt to remove your child from Spain without your consent, call our Family Lawyer Sandra Márquez for immediate legal advice. Acting swiftly can make all the difference.
Sandra Márquez
Criminal & Family Lawyer
CEO Expat&Legal Spain