The following process applies regardless of whether the parents of the children are unmarried or married.
The parents can agree via a ‘convenio’ or written agreement on issues such as child custody and visitation rights.
A judge will review any agreement and adjust as required, taking into account the best interests of the children.
A judge may make an order awarding custody to one of the parents, or to both in an order of ‘joint custody’.
In most regions of Spain it is normal to award custody to one of the parents, typically the mother. However in some regions it is now law that the judge must consider the awarding of ‘joint custody’.
More information about the standard rules in your area of Spain can be found in the section ‘Family Law by Region’ on the left hand side of this page.
For more information see Child Custody In Spain.
May a parent take a child to another country following a divorce in Spain?
If a parent is awarded sole custody of the children then whether or not the children can be taken to live in another country may have to be decided by a court if the non-custodial parent is not in agreement with the move.
This is because the non-custodial parent retains the right to visitation which would be seriously eroded in the case of the children moving to another country.
If a judge decides that the move is in the best interests of the children and that there is sufficient family support in the planned destination then it can be approved.
In such a case it is likely that provisions would need to be made to maintain contact with the non-custodial parent during holidays etc.
What is the Spanish law relating to child maintenance?
Whether or not the parents of a child are married there is a legal responsibility to provide for the child before and after any divorce, separation or break-up between the parents.
Child maintenance covers such basic matters as accommodation, feeding, clothing and education.
A divorce agreement will contain details of any maintenance provision that is to be made by the parents.
This is because even though both parents are equally responsible to provide for their children they may not both have the same resources.
In the absence of any such agreement a court will determine the responsibilities of each parent to provide for the children and to do so regard shall be had to the income of both parents as well as liabilities.
Failure to comply with child maintenance payments can result in fines as well as the embargo of income and possessions.
A civil action for compliance should be filed in the court where the original order was made.
Should a parent be unable to comply with the decree of the court due to a substantial change in circumstances, they should request an order amending the agreement such that the amounts due to be paid may be lowered.