Today we talk about an interesting ruling that analyzes the legal limits when depriving a parent of parental custody of his or her children.
Is repeated absence over several years sufficient for this measure to be adopted and for the parent to be deprived of all contact with the children?
What is the role of child support payments? How restrictive should the application of the deprivation of parental rights be?
Deprivation of parental rights: only in very serious cases
The parental authority is defined as the set of rights, powers and duties that parents have over their unemancipated children.
Thus, parental authority corresponds to fathers and mothers by the mere fact of being parents, regardless of whether they are married or not.
Its basis is found in the paternal-filial relations.
Thus, parental authority obliges parents to ensure the education of their children, their protection, clothing, legal representation….
Specifically, it must be taken into account that the exercise of parental authority implies a series of specific duties established by law.
This must always be exercised for the benefit of the children and imposes on the parents, among other duties, the obligation to be with them, take care of them, protect them, feed them, educate them, provide them with an integral formation, legally represent them and administer their property.
In addition, parents may be deprived of parental authority when they fail to comply with the duties deriving from parental authority, always by decision of a judge. Parents may also be deprived or suspended from exercising parental authority when their conduct endangers the training of minors or incapable persons or when they are treated with excessive harshness, which implies not only severe physical punishment but all kinds of acts involving cruelty or abuse of authority.
On the other hand, parents may be reinstated in parental authority if they can prove that the circumstances that led to the deprivation of parental authority no longer exist.
Furthermore, it is important to bear in mind that the jurisprudential criterion on the suspension or deprivation of parental authority is restrictive, stating that such a serious measure must be adopted as a precautionary measure and always in clear and serious cases of breach of the duties inherent to it, without being able to set general criteria but must be assessed on a case-by-case basis and taking into account the interests of the children.
For example, a parent may be deprived of parental authority in the event of a conviction for family violence against the child, failure to provide for the child, abandonment of the child, commission of intentional crimes against the child or its property, the abduction of the child…
Deprivation of parental rights: Is the absence of the father sufficient to grant it?
In the case of the lawsuit we are analyzing today, the mother requested the deprivation of the parental rights of the defendant father with respect to their two minor daughters, whose custody and guardianship had been granted to the mother in a divorce judgment by mutual agreement, issued in 2009, maintaining joint parental rights.
In addition, in the regulatory agreement signed by the parents, they were authorized to reside at different addresses (she in Spain, he in Mexico).
In this context, the father had remained voluntarily absent from the life of his daughters during the last three years (since 2015) without exercising his visitation rights, nor communicating with them, nor worrying about their school situation or state of health, delegating full responsibility to the mother and without paying the alimony declared in the divorce judgment, since 2015.
Thus, according to the plaintiff, this abandonment of his duties is a serious breach of the provisions of Article 154 of the Civil Code and would lead to the situation of joint parental authority being detrimental to the minor daughters, due to the difficulties generated by the absence and lack of concern of the father, to obtain his consent and manage any necessary authorization for school matters (change of school, excursions, consents for medical or surgical interventions, travel, etc.).
For his part, the father acknowledges that he has not exercised his visitation rights during the last three years, nor has he paid the child support payments for his minor daughters, alleging economic impossibility and delegating all responsibility to the mother.
The lack of communication during the last three years also results from the examination of the children.
He denies, however, affective detachment with respect to the daughters, with whom he resumed communication in April 2018.
In response, the judgment, handed down by the Provincial Court of Ourense on March 4, 2020, recalls that case law contemplates the deprivation of parental authority not only as a sanction to the parent who fails to fulfill his parental obligations inherent to parental authority and imposed in Article 154 of the Civil Code, but as a measure of restrictive interpretation, which must also have an impact for the benefit of the children. Therefore, it is necessary, in order to deprive the father of parental authority, to understand that maintaining parental authority would be detrimental to the emotional or personal development of the children. In the words of the Supreme Court (judgment of February 10, 2012): In the specific case, the father’s absence from his daughters’ lives during the last three years and his failure to fulfill his duties of protection with respect to his daughters during the same period justifies the partial deprivation of the powers inherent to parental authority.
The objective is that the mother does not have to seek his consent for the adoption of decisions affecting the daily life of the children, in terms of medical issues, related to their schooling, travel, extracurricular activities and any matter of an administrative nature affecting the girls, “with respect to which the father has maintained a complete lack of concern, without just cause”. Thus, the sentence speaks of the possible “eventuality that this situation of voluntary absence could occur again, with the consequent harm to the children and the added difficulty for the mother in the exercise of her custody of having to seek the consent of a father who is difficult or impossible to locate”.
However, there is no benefit for the daughters through the deprivation of the visitation rights requested in the lawsuit, nor in the deprivation of any right to have contact with them.
The sentence assures that it is not understood that the father’s manifestations of affection towards his daughters could “frighten the minors” or cause disturbance in their emotional stability, as the plaintiff mother claims, who intends, for this reason alone, to deprive the father of the right to establish any contact or communication with them.
In fact, this communication, in a normal order, should be beneficial for the daughters, and implies their possibility to watch over the fulfillment of the duties by the custodial parent.
In short, the deprivation of any reference to the father figure in the life of the children is not considered justified, despite the failure of the father to fulfill his parental duties, because it has not been proven that this has an impact on the benefit of the children. If you need legal assistance in a matter related to guardianship and custody or parental authority of minors, contact our lawyers in Barcelona.
