Spanish Family Law: Petition of modification of custody due to a breach of the visitation regime agreed in a divorce.

CONSULTATION: My wife and I divorced in Spain under the English law of our nationality. She has the custody of our young children ( minors), and they live in Spain. I live in England. My wife does not comply with the visitation regime and she does not let me talk on the phone, or be with my children on the vacation periods which correspond to me in summer, Christmas, etc.
Could I ask for a custody modification, and get a court order which changes the custody and get my children to live with me in the UK, because she does not meet the divorce decree and she does not let them stay or me contact them?

Dear reader, thank you for your inquiry.

In principle, the answer must be YES, because the Spanish Civil Jurisdiction Law, in its Article 776.3, states: “The repeated breach of the obligations arising from visitation regimen by both, the parent with the custody or the non custodial, may lead to a modification of custody and visitation by the Courts “.

Therefore, if the custodial parent, in your case the mother, with whom the children live refuses to comply with the visitation agreement included on the divorce court order, you could ask and could get a new Court Order modifying the existing guardianship and custody resolution, and it is possible for the custody to be awarded to you, and to get the minors to live with you.

Although this article foresees such a possibility, it is not automatic. In family law, when minors are involved, the most important principle to be respected is the Protection of the Child’s Interests.

In your case, in our view, in order to get a Court Ruling authorizing the modification of the custody, you will need to prove, not only that the mother is not allowing you to communicate or to be with them, but also, that taking into account their interests and rights to see, communicate and be with their father, the best for them, would be a change of the custody in your favour. This could be complicated, if the children have been living for long time with the mother and they are integrated into the Spanish culture, school, etc., because the custody change, in your case, would need the children to move to live in United Kingdom, and may not be in their best interest.

There is a recent judgment of the Supreme Court of Spain, No. 823/2012 of 31 January 2013, in a similar case. This was a case of a divorced mother living with his son in the United States, and she did not allow the father to contact or see the boy at all. The court of first instance and also the Provincial Court, decided to change custody and give the sole custody to the Spanish father, who lived in Spain, due to the constants breaches of divorce court order by the mother. But, the Spanish Supreme Court decided that the custody modification and to force the son to live in Spain, considering that he lived all his file in the U.S.A, and was used to the American customs, food, etc., was not the best for the child’s interests. Moreover, the Supreme Court noted that the father could take other alternatives such as: requesting for a penalty against the mother, start a criminal proceedings for breach of the divorce Court Decree, or under the Hague Convention ask the court from United States of Amercia to ensure that his visitation and contact rights are effectively respected.

Each case must be studied in detail before advice can be given.

If you are in the same or similar situation, we can assist you. The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.

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