Parental authority
Parental authority refers to the rights and duties that parents have in relation to their unemancipated children.
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What Is Parental Authority?
Parental Authority includes the rights and duties that parents have in relation to important decisions affecting their children’s lives. These decisions may involve matters such as education, healthcare, emotional development, religious upbringing, and the overall wellbeing of the children.
For example, parental authority includes decisions regarding which school the children will attend, whether they will receive religious education, or whether psychological support or medical treatment may be necessary.
In most cases, both parents exercise parental authority jointly. However, a court may restrict or remove parental authority in particularly serious situations, especially where the children’s physical or emotional wellbeing — or even their financial interests — may be at risk.
What Happens If the Parents Do Not Agree?
Disagreements can sometimes arise between parents regarding important decisions affecting their children.
When parents are unable to reach an agreement on matters related to parental authority, either parent may apply to the court so that a judge can assess the situation and decide which option best protects the best interests of the child, taking into account the specific circumstances of the family.
Difference Between Parental Authority and Custody
These terms are often confused, but the difference is quite simple.
Parental authority refers to the right and duty to make important decisions about your children’s future, such as matters related to education, healthcare, emotional wellbeing, or values.
Custody, on the other hand, refers to where the children live and who is responsible for their day-to-day care and routine.
In most cases, both parents continue to share parental authority jointly, even when custody is granted primarily to one parent.
Provide a Safe and Stable Environment for Your Children
Exercising parental authority after a separation can sometimes become complex. At Zabalgo Family Lawyers, we help you avoid unnecessary conflict and guide you in managing shared decisions with clarity, legal certainty, and peace of mind.
Parental authority in international families
For families spread across more than one country, parental authority raises a question that comes before any other: which court can decide, and which law applies.
Within the European Union, jurisdiction over parental responsibility is governed by Regulation (EU) 2019/1111, Brussels II ter, applicable since 1 August 2022. The general rule is that jurisdiction lies with the courts of the State where the child is habitually resident at the time the application is made. Habitual residence is a factual concept: it depends on where the child’s life actually takes place — school, medical care, family environment — and not on nationality or on where the parents are registered.
Outside the European Union, the 1996 Hague Convention on parental responsibility performs a comparable function among the States that are party to it.
Moving abroad with a child
This is the single most frequent source of serious conflict in international families, and the rule is straightforward: where parental authority is shared, one parent cannot unilaterally change the child’s country of residence. It requires the consent of the other parent or, failing that, judicial authorisation.
Taking a child abroad without that consent may amount to international child abduction under the 1980 Hague Convention, which provides for the prompt return of the child to the State of habitual residence. The proceedings are urgent and their outcome rarely favours the parent who acted unilaterally.
Our page on international child abduction sets out how these proceedings work.
When parents cannot agree on a decision
Where parental authority is shared and the parents disagree on a specific matter — schooling, medical treatment, a passport application, a change of address — Spanish law does not leave the decision to whichever parent acts first. Either parent may apply to the court under article 156 of the Civil Code for authority to decide that particular question.
These proceedings are relatively swift and are decided by reference to the best interests of the child. They resolve the specific point in dispute; they do not alter custody.
Two practical situations arise constantly in international families and are worth anticipating: passport and travel documents, which as a general rule require the consent of both parents, and enrolment in a foreign school, which is treated as a decision within the scope of parental authority rather than an everyday matter.