International child custody: can my ex-partner move to another country with our children?

When a couple separates and one parent wants to move to another country with the children, the situation can become very complicated.

It is not simply a matter of deciding where each adult wants to live. When children are involved, it is necessary to consider parental responsibility, the children's habitual residence, custody arrangements and whether or not both parents agree.

At the firm, we have handled numerous international child custody disputes, including cases where one parent has taken the children to another country and particularly complex situations involving authorities and courts in different States, including Russia.

For this reason, if your ex-partner wants to move abroad with your children, it is advisable to act before the relocation takes place.

Can my ex-partner take our children to live in another country?

Not always.

A change in a child's habitual residence requires the consent of both parents or, failing that, judicial authorisation.

This is important because having custody does not automatically mean being able to decide unilaterally that the children will move to another country.

Custody and parental responsibility are not exactly the same thing.

What if I do not agree with the move?

If there is no agreement, the parent who wants to relocate with the children may apply for judicial authorisation.

The court will then assess the specific circumstances.

Relevant issues in this type of proceeding may include:

• the children's circumstances;
• where they habitually live;
• their schooling;
• their relationship with both parents;
• the reason for the move;
• how the change would affect their relationship with the parent remaining in Spain.

A situation like this should not be dealt with solely through verbal agreements.

If the move is significant and permanent, it should be properly addressed from a legal perspective.

What happens if the children are taken without my permission?

At that point, the problem may change completely.

The Spanish Ministry of Justice considers international child abduction to be the unilateral removal or retention of a child under the age of 16 from the State in which the child habitually resides to another State, when it takes place without the consent of the other parent and without judicial authorisation.

For example, a conflict may arise when one parent:

• takes the children to another country without authorisation;
• travels with them and then decides not to return;
• changes their residence without informing the other parent;
• breaches a court decision relating to the children.

This does not mean that every trip abroad automatically amounts to international child abduction.

What matters is analysing why the move took place, where the children were habitually resident and what rights each parent had.

A problem that can become very serious

In our experience, international child custody cases can become complicated very quickly.

We have handled situations where one parent moved to another country with the children and it then became necessary to act before different judicial systems.

We have also dealt with matters involving Russia and other countries.

Once the child is outside Spain, the problem is no longer simply a disagreement between the parents.

It may be necessary to coordinate proceedings, documentation and authorities in two different countries.

For this reason, when there is a genuine risk of relocation, it is better to act before the move than to try to solve the problem once the children are already abroad.

What can I do if I believe my ex-partner is going to take them abroad?

If there is a genuine risk, the Ministry of Justice indicates that judicial measures may be requested to prevent the child from leaving the country.

These include:

• prohibition on leaving Spain without judicial authorisation;
• prohibition on issuing the child's passport or withdrawal of the passport;
• requirement to obtain judicial authorisation before changing the child's address.

These measures do not apply automatically.

They must be requested and the reasons for the risk must be explained.

For this reason, it is important not to wait until the last moment if there are clear indications that the other parent intends to move abroad with the children without agreement.

What happens if the children have already been taken abroad?

If the children have already been moved to another country, it is necessary to analyse quickly which procedure may be available.

When the child was habitually resident in Spain and has been removed to or retained in another State, an international return procedure may be available.

The Spanish Central Authority may receive the application and forward it to the relevant authority in the country where the child is located. However, the final decision on return is made by the court in the country where the child is located.

The specific procedure will also depend on the country to which the children have been taken and on the applicable international conventions.

For this reason, two cases that appear similar may ultimately follow very different procedures.

Why is the child's habitual residence important?

Very important.

In international matters, it is not enough to ask:

"What nationality is the child?"

It is also necessary to determine where the child had actually established their life before the dispute.

Habitual residence can be fundamental in determining which authorities should intervene and whether an unlawful removal has taken place.

Relevant elements may include:

• home address;
• school;
• doctor;
• activities;
• how long the child had been living in that country;
• family and social environment.

In these cases, documents showing where the children's lives were established may become an important part of the proceedings.

What if my ex-partner says it is only a holiday?

A temporary trip and a change of residence must be distinguished.

They are not the same.

The problem arises when a trip that was supposed to be temporary becomes a stay in another country, or when it is used to change the children's residence in practice without consent.

If there is serious mistrust between the parents, it is advisable to record in writing matters such as:

• destination;
• dates;
• accommodation;
• expected date of return.

And if there is a risk that the children will not return, legal measures should be considered before the trip.

What happens if the other country has a different legal system?

This is one of the most difficult aspects of international child custody.

When the children are in another State, the response may depend on the international conventions in force and on how the courts in that country operate.

The Ministry of Justice warns that the duration and development of return proceedings abroad depend on the domestic rules of the State where the child is located.

We have seen this in practice.

When countries with very different legal systems are involved, as has happened to us in matters involving Russia and other States, the strategy must be considered with particular care.

It should not be assumed that a Spanish court decision will automatically have the same effect in every country.

What documentation should I have ready?

It will depend on the case, but relevant documents may include:

• the children's birth certificates;
• documents proving parentage;
• custody court order, if one exists;
• parenting agreement;
• passports;
• school certificates;
• municipal registration;
• documents proving habitual residence;
• messages or communications concerning the possible relocation;
• information about where the children are located.

The Ministry of Justice itself refers to documents concerning parentage, habitual residence and court decisions among the relevant documentation in return proceedings.

What should I do if my ex-partner wants to move abroad with our children?

The first step is to establish exactly what they intend to do.

A two-week holiday is not the same as a permanent move to another country.

It is useful to clarify:

1. which country they want to move to;
2. for how long;
3. where the children will live;
4. where they will attend school;
5. how the relationship with the other parent will be maintained;
6. whether both of you exercise parental responsibility;
7. whether there is already a court order or agreement;
8. whether there is a risk that the move will take place without consent.

If there is no agreement on a permanent change of residence, it is not advisable to ignore the problem in the hope that it will resolve itself.

Conclusion

If your ex-partner wants to move to another country with your children, this does not automatically mean that they can do so unilaterally.

When both parents exercise parental responsibility, an international change of the child's residence requires agreement or, if there is no agreement, a judicial decision.

And if one parent takes the children to another country or retains them there without consent or authorisation, the matter may become an international child abduction case.

Our experience has shown us that these matters are much easier to address before the move than once the children are already in another country.

If there is a genuine risk, acting quickly can be essential.

Frequently asked questions

Can my ex-partner take our children to live abroad without my permission?

If both of you jointly exercise parental responsibility, moving the children's residence to another country requires the consent of both parents or a court decision.

Does having custody mean I can move to any country with the children?

Not necessarily. Custody and parental responsibility are different matters and the specific circumstances must be analysed.

What happens if the children are taken abroad and do not return?

Depending on the circumstances, there may be an international child abduction situation and it may be necessary to begin return proceedings.

Can the children be prevented from leaving Spain?

In situations involving a genuine risk, judicial measures may be requested, such as a prohibition on leaving Spain, withdrawal or non-issuance of the passport and prior judicial authorisation for changes of address.

Does it matter which country the children have been taken to?

Yes. The procedures and mechanisms available may vary depending on the country and the applicable international conventions.

Note: This article is for information purposes only. International child custody and child abduction proceedings depend on the specific circumstances and the countries involved.