If you are a foreign parent living in Spain and are separating from your partner, you may have questions about where your child will live, how parenting time will be arranged and who will make important decisions about your child's upbringing.

You may also be concerned about what happens if you and the other parent have different nationalities, if one of you plans to move abroad or if your child has lived in more than one country.

Spanish family law does not decide custody solely on the basis of a parent's nationality. International cases require careful consideration of the child's circumstances, the courts' jurisdiction and the rules that apply to parental responsibility.

1. Which country's courts can decide child custody?

In many cases involving EU Member States, Regulation (EU) 2019/1111 provides that the courts of the Member State where the child is habitually resident when proceedings are brought have jurisdiction over parental responsibility, subject to the Regulation's exceptions.

For cases involving countries outside the EU, the 1996 Hague Convention on parental responsibility and measures for the protection of children may also be relevant, depending on the countries involved and the scope of the Convention.

The child's habitual residence is therefore often central to determining which court can hear the case.

It is not necessarily the same as a parent's nationality, the country where the child was born or the location of the family home at the time of separation.

Other jurisdictional grounds may apply in specific circumstances. If there are existing proceedings or a previous custody order from another country, that must also be considered.

2. How do Spanish courts decide custody?

Where Spanish law applies, decisions about custody must take account of the child's best interests and the circumstances of the individual family.

Article 92 of the Spanish Civil Code addresses custody and parental responsibilities in separation, annulment and divorce proceedings. It requires the court to consider the child's interests and provides for the child to be heard in accordance with the applicable rules.

Relevant circumstances may include:

• The child's age, needs and established routines.
• Each parent's ability to provide appropriate care.
• The child's relationship with each parent.
• The practical arrangements for school, healthcare and daily life.
• The ability to maintain meaningful relationships with both parents, where appropriate.
• Any safety concerns or other circumstances affecting the child's welfare.
• The child's views, where they must or should be heard under the applicable law.
  

No single factor automatically determines the outcome. The court must assess the circumstances of the particular child.

3. Is joint custody automatic in Spain?

No. Joint custody is not an automatic consequence of separation or divorce.

Under Article 92 of the Spanish Civil Code, joint custody may be agreed by the parents in the regulatory agreement or during the proceedings. The court may also consider the statutory conditions for ordering joint custody in the child's interests.

The appropriate arrangement depends on the legal framework applicable to the case and the circumstances of the family.

In practice, questions such as the parents' availability, the child's needs, the feasibility of the proposed arrangements and any relevant safety concerns may require careful examination.

Sole custody does not necessarily mean that the other parent loses parental responsibility. Custody arrangements, parental responsibility and contact arrangements are distinct legal issues.

4. Can I move abroad with my child after separation?

Moving internationally with a child is a particularly sensitive issue.

A parent's ability to relocate with a child may depend on parental responsibility, any existing court order or agreement, the other parent's rights and the applicable law.

Where the other parent has relevant parental rights, relocating without the necessary consent or legal authorisation may create serious legal difficulties. In certain circumstances, an international move may also raise issues under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

If you are considering moving to another country with your child, or if the other parent has already taken the child abroad without the necessary consent, obtain legal advice promptly. Do not assume that a change of residence can be treated as an ordinary move.

5. What if my child has connections with several countries?

International family cases may involve more than one legal system.

For example:

• The parents may have different nationalities.
• The child may have been born abroad but now live in Spain.
• One parent may live in another country.
• There may already be a foreign custody order.
• A parent may wish to relocate internationally.
  

In these circumstances, the first step is to determine which court has jurisdiction and which legal rules govern the particular issue. Recognition or enforcement of an existing foreign order may also need to be considered.

How can I help?

If you are a foreign parent living in Spain and need advice about custody, parenting arrangements or an international family dispute, I can help you understand the legal issues and the available options.

I am Laura Rincón, a family lawyer based in Madrid. I advise in English and Spanish and assist with family-law matters throughout Spain, subject to the jurisdictional and procedural requirements of the case.

Contact me to discuss your child's circumstances and the legal steps that may be available to you.

General information only. Custody and parental responsibility depend on the applicable law, the court's jurisdiction and the individual circumstances of the child. This article does not constitute legal advice.