Parental Authority and Child Custody in Comparative Law

Parental authority and child custody in family proceedings

In family proceedings involving minor children, whether parental measures, divorce or separation proceedings, one of the most important issues is determining how parental authority and child custody will be regulated.

These measures directly affect other decisions relating to the children, such as child support, visitation arrangements, the allocation of the use of the family home or the possibility of relocating the child’s residence to another place.

When there is also an international element —because of the parents’ nationality, residence in different countries or the possible relocation of the child— the correct interpretation of these concepts becomes especially important.

 

Parental authority and child custody in Spain

Under Spanish law, parental authority and child custody are related concepts, but they are not the same.

Parental authority includes the rights and duties of parents towards their non-emancipated minor children. Child custody, on the other hand, refers to the children’s daily care: everyday living arrangements, routines, school attendance, food, clothing, medical appointments and ordinary care.

This difference is especially relevant because, in family proceedings, parental authority is usually exercised jointly by both parents, whereas custody may be established as shared custody or granted to only one parent, depending on the circumstances of the case.

 

What is parental authority?

Parental authority is regulated in Articles 154 and 156 of the Spanish Civil Code. Article 154 establishes that non-emancipated children are under the parental authority of their parents, which must always be exercised for the benefit of the children, in accordance with their personality and with respect for their physical and psychological integrity.

The duties and powers it includes are:

• Looking after the children.
• Keeping them in their company.
• Feeding them, educating them and providing them with comprehensive development.
• Representing them and administering their property.
• Deciding significant matters, such as the child’s habitual residence, education or certain medical treatments.

In short, parental authority covers the important decisions in a child’s life. For example, choosing a school, a significant change of residence, an important medical procedure or certain educational decisions.

Article 156 of the Spanish Civil Code establishes that parental authority shall be exercised jointly by both parents or by one parent with the express or tacit consent of the other. In family proceedings, the usual approach is to maintain joint exercise, except in serious cases that justify another measure.

Parental authority cannot be voluntarily waived. It may only be suspended, limited or removed by court decision when legally established grounds exist.

 

What is child custody?

Child custody refers to the daily care of minor children. It includes ordinary day-to-day decisions: who lives with them, who takes them to school, who attends to their daily needs, who organises their routines and who takes care of them on a regular basis.

This legal figure is mainly regulated in Article 92 of the Spanish Civil Code and may be organised in different ways:

• Sole custody: granted to one parent, without prejudice to the other parent’s visitation, communication and stay arrangements.
• Shared custody: both parents participate in a balanced way in the daily care of the children.

Although the Spanish Civil Code still contains wording that traditionally presented shared custody as exceptional, Supreme Court case law has consolidated the view that it may be a normal and desirable arrangement when it is beneficial for the child and the family circumstances allow it.

Parental authority concerns significant decisions about the children. Child custody refers to daily care and everyday living arrangements.

 

Parental responsibility in international law

At international level, the Spanish concepts of parental authority and child custody are often included within a broader category: parental responsibility.

In the European Union, Regulation (EU) 2019/1111, known as Brussels II ter, regulates, among other matters, jurisdiction, recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility.

This Regulation uses the concept of parental responsibility to refer to the rights and obligations relating to the person or property of a child, including, among other aspects, rights of custody and rights of access.

In the non-EU international framework, the 1996 Hague Convention on parental responsibility and measures for the protection of children also uses this broad concept. The Convention includes within parental responsibility parental authority or any analogous relationship of authority determining the rights, powers and obligations of parents, guardians or other legal representatives in relation to the person or property of the child.

 

Why differences between countries matter

Although international regulation seeks to unify concepts, in practice each country may attach different effects to apparently similar legal figures.

This may create conflicts in family proceedings with a foreign element. For example, a decision that in one country corresponds to the parent who lives with the child may, in Spain, require the consent of both parents because it affects the exercise of parental authority.

Cultural and legal differences may influence decisions such as:

• Choosing a school.
• Changing the child’s residence.
• Relocating to another country.
• Organising international visitation arrangements.
• Interpreting a foreign custody decision.

For this reason, in international family proceedings it is essential to analyse not only Spanish law, but also the law of the country connected with the case and the applicable international conventions.

 

Parental authority and custody in comparative law

The way parental authority, child custody or parental responsibility is understood varies from country to country. Below is a general overview of several legal systems that are relevant in international family proceedings.

England and Wales

In England and Wales, the concept of parental responsibility is used, which may be partly comparable to Spanish parental authority. It includes the rights, duties, powers, responsibilities and authority that parents have in relation to their children.

Parental responsibility also includes decisions about who the child should live with and who the child should spend time with.

When parents are married or in a civil partnership, both usually have parental responsibility. Mothers always have it, while unmarried fathers may acquire it through different routes, such as joint registration of the birth, an agreement with the mother or a court order.

Italy

In Italy, the concept of parental responsibility replaced the former term parental authority. It refers to the duty to maintain, educate and provide moral support to children, taking into account their abilities, inclinations and aspirations.

Shared custody, known as affidamento condiviso, is configured as the general rule over sole custody, with the aim of guaranteeing the exercise of parental responsibility by both parents and the child’s right to maintain a balanced relationship with both.

However, Italian law also has the concept of placement of the child, which refers to the child’s habitual residence and daily care, closer to what Spanish law understands as child custody.

Germany

In Germany, the figures known in Spain as parental authority and child custody are integrated into a broad concept that describes the set of rights and obligations of parents in relation to the child.

The current trend is to favour the joint exercise of these responsibilities, although they may be granted to only one parent in certain cases.

When one parent holds these powers exclusively, they may be able to make relevant decisions such as relocating the child, choosing the school or changing residence, depending on the circumstances and the applicable decision.

Chile

In Chile, the conceptual differences are especially relevant. Parental authority is mainly linked to the administration of the child’s property, with a patrimonial or financial dimension.

Personal care of the children, by contrast, is closer to what in Spain may include both child custody and certain important decisions about the child’s life.

If the parents live separately, they may agree who will exercise personal care, either exclusively or jointly. If there is no agreement, the decision will depend on the circumstances of the case and the child’s interests.

United States

In the United States, regulation varies from State to State, which may create significant differences. In some cases, the concept of custody may include decisions that in Spain would fall under parental authority.

There is also what is known as residential custody, which may give one parent relevant powers relating to the child’s habitual residence, schooling or even religious education.

The existence of fifty States with different laws may create conflicts when, for example, a decision about changing residence requires the consent of both parents in one State but is treated differently in another.

 

International relocation of the child and rights of custody

One of the most delicate issues in International Family Law is the relocation of a child to another country without the consent of the other parent or without court authorisation.

In some countries, the parent who lives with the child may believe that they have sufficient authority to decide on the relocation. However, in Spain, an international change of the child’s residence usually affects the exercise of parental authority and therefore requires the consent of both parents or court authorisation.

A lack of understanding of these differences may lead to a case of international child abduction, with serious consequences for the parent who carries out the relocation.

The 1980 Hague Convention considers the removal or retention of a child wrongful when it takes place in breach of rights of custody attributed under the law of the State in which the child had their habitual residence, provided that those rights were actually exercised or would have been exercised if the removal or retention had not taken place.

In international matters, the concept of “rights of custody” does not always coincide with child custody as understood under Spanish law.

 

Conclusion

Under Spanish law, parental authority and child custody are different legal figures. The former refers to significant decisions about the child’s life; the latter, to daily care and everyday living arrangements.

However, at international level, both concepts may be integrated into parental responsibility or treated differently depending on each country’s legislation.

This lack of uniformity may generate conflicts in international family proceedings, especially in cases involving relocation of children, habitual residence, cross-border visitation or international child abduction.

For this reason, when there is a foreign element, it is essential to carefully analyse the applicable law, the child’s habitual residence, each parent’s rights and the international conventions in force.

 

How we can help you at Zabalgo Family Lawyers

At Zabalgo Family Lawyers, we have experience in International Family Law proceedings, especially in matters relating to parental authority, child custody, international relocation, cross-border visitation and international child abduction.

We analyse each case from a legal and strategic perspective, taking into account Spanish law, the applicable foreign legislation and any international instruments that may be involved.

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