Children & Parental Responsibility
When a child’s lifecrosses borders,the law becomesmore complex.
In an international family, questions concerning the children are not determined solely by the nationality of their parents. The child’s habitual residence, that of each parent, the countries in which the child has lived, existing decisions, agreements between the parents and the applicable international instruments can completely alter the analysis.
What looks like a family question can become a question of jurisdiction, private international law, and recognition and enforcement between States.
Confidential consultation
Nationality
The child’s nationality is not the whole story.
One of the most common mistakes is to treat the child’s nationality as the main legal criterion.
In reality, certain questions may depend on where the child’s habitual residence is. And establishing it may require analysing much more than a formal address:
- where the child actually lives
- where the child goes to school
- where the child’s daily life takes place
- where the child is integrated
- how long and how stable that residence has been
- what ties the child has with other countries
The centre of a child’s life can matter more than the passport.
Residence
Residence can shift jurisdiction.
A family may have:
- a Spanish father
- a French mother
- British children
- the family residence in Spain
- school in another State
- and assets in a third
The nationality of each family member is only one part of the map.
The legal question is to determine which connections are relevant to each matter and which courts may have jurisdiction.
And this can change depending on whether we are talking about:
- custody
- parental responsibility
- contact arrangements
- international relocation
- maintenance
- or recognition and enforcement
Jurisdiction
Jurisdiction is onlythe first layer.
Even when we know which court may hear the case, another question remains:
Applicable law
Which law applies?
Jurisdiction and applicable law are different concepts.
A court in a given State may have jurisdiction and yet certain questions may be subject to conflict-of-law rules that lead to a different law.
Moreover, the same family situation may be governed by different legal instruments depending on the specific question and the countries involved.
One family. Different questions. Different legal rules.
The children
Children change the legal map.
Where there are children, the analysis of a divorce or legal separation cannot be confined to the relationship between the parents.
Specific questions arise concerning:
- parental responsibility
- habitual residence
- custody
- contact rights
- decision-making
- education
- health
- international travel
- relocation
- maintenance
- and recognition and enforcement of decisions
Each of these may have its own international dimension. See International Divorce →
Relocation
Relocation is not just a move.
One of the most delicate scenarios arises when a parent wishes to relocate to another country with the child.
The legal problem is not simply whether a person may change residence.
The question may be:
Can the parent take the child with them?
And here the following may become decisive:
- the rights of both parents
- the child’s habitual residence
- existing decisions
- family agreements
- the need for consent
- any court authorisation required
- which court has jurisdiction
- and the applicable international instruments
A change of address can become a change of jurisdiction.
When a child has alreadycrossed the border.
The removal or retention of a child in another State may trigger the specific mechanisms for international child abduction (1980 Hague Convention).
These cases are especially complex because the following are all involved at the same time:
two or more legal systems
authorities of different States
international rules
time limits
habitual residence
rights of custody
and questions of recognition and return
Here, moreover, time can take on extraordinary importance.
The country
The country matters.
Not all States are bound by the same conventions, nor do they necessarily apply the same rules.
Membership of the European Union, the existence of international conventions and the legal relations between the States involved can substantially change the picture.
That is why there is no universal answer to: “My child lives in another country. What can I do?”
The answer depends on which countries are involved, what connection the child has with each of them and which legal instrument governs the situation.
Recognition
Recognition is part of the problem.
Obtaining a favourable decision is not always the end of the matter.
When the parents or the child are in different States, we must consider:
- whether the decision will be recognised
- how it can be enforced
- which authority will have to intervene
- what cooperation mechanisms exist
- and what effect it will actually have in the country where it must be given effect
A judgment is not the end if it cannot cross the border. See Cross-Border Judgments →
Child maintenance
And then there is child maintenance.
Financial obligations towards children also have an international dimension when the child and the parent liable to pay live in different countries.
Here, questions arise once again of:
- jurisdiction
- applicable law
- recognition
- enforcement
- and international cooperation
What changes is not only how much must be paid. It can also change where the claim is brought, which law applies and how it is enforced.
The connections
Family law does not exist in isolation.
In certain international families, questions concerning the children are connected with other realities:
- a divorce
- a family property
- a business
- a change of residence
- an inheritance
- a nationality
- a tax obligation
- assets located in several countries
That is why an apparently family dispute can end up having consequences in family law, mobility, real estate, tax and private wealth.
The family may be one. The legal dimensions are not.
The complexity
The complexity is in the connections.
There is no single criterion that explains every international matter involving children.
The following may matter:
- nationality
- habitual residence
- the parents’ residence
- the child’s residence
- the place of marriage
- existing agreements
- court decisions
- assets
- the moment at which each event occurs
- proceedings already begun
- the applicable international conventions
And, above all, how they interact with one another.
Garzalex · Family & Succession · International Family
This is where international family law begins.
Not on the form. Not in the nationality. Not in a single body of law. It begins with the connections between them.
One family. Many connections. One legal map.
When a family is linked to more than one State, decisions can produce effects far beyond the country in which they are taken. That is why the real difficulty does not always lie in knowing a rule. It lies in knowing which rule, which jurisdiction and which consequence apply to each element of the case.
Confidential consultation