SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
Article 7 of Council Regulation No 2019/1111 rules that the member state’s courts where the child is habitually resident at the time the court is seised shall have international jurisdiction for parental responsibility and childcare arrange - ments. Spain will have jurisdiction for bringing children proceedings when the children are habitual residents in Spain when the court is seised. Article 10 of Council Regulation No 2019/1111 rules the choice of court by the parents: “ 1. The courts of a Member State shall have juris - diction in matters of parental responsibility where the following conditions are met: (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that: (i) at least one of the holders of parental respon- sibility is habitually resident in that Member State; (ii) that Member State is the former habitual residence of the child; or (iii) the child is a national of that Member State; (b) the parties, as well as any other holder of parental responsibility, have: (i) agreed freely upon the jurisdiction, at the lat - est at the time the court is seised; or (ii) expressly accepted the jurisdiction in the course of the proceedings, and the court has ensured that all the parties are informed of their right not to accept the jurisdiction; and (c) the exercise of jurisdiction is in the best inter - ests of the child. ” The applicable law on international jurisdiction in maintenance obligations is European Coun - cil Regulation (EC) No 4/2009 of 18 December 2008 on maintenance obligations. According to Article 3 (b), Spain would have jurisdiction for
child maintenance when the child has a habitual residence in Spain. The most relevant concept for determining juris - diction in children matters is the child’s habitual residence at the time the court is seised. In the case of Articles 10 and 12 of Council Regulation (EC) No 2019/1111, the nationality of the child can be a factor in proving a special connection of the child with that state for an agreement between the parents on the choice of court or a transfer of jurisdiction to the court of another member state. 3.2 Living/Contact Arrangements and Child Maintenance Parental Responsibility and Custody Article 156 of the Civil Code states that both parents have the same parental responsibility and must agree on the child’s upbringing, such as schooling, medical treatment, religion, holi - days, etc. In case of dispute, either parent can issue a proceeding and the judge, after having heard both parents and the child (mandatory for children older than 12 years), will issue an order stating which parent can decide on this spe - cific matter. The parental responsibility matters of Article 156 are urgent proceedings on family law that must be heard in court within a month. Parental responsibility will not be affected by a divorce. In Spain, “rights of custody” refers to “parental responsibility” for both parents. When they cannot agree on an issue, they must take the matter to a court, which will issue an order stating which parent decides on this specific matter. The court must decide at the time of the divorce which parent the child lives with (physical cus - tody) and which parent has the “right of access”.
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