In today’s post we comment on a key issue in Family Law on which the Supreme Court has recently ruled in a new judgment.
It is about the duty to listen to the minor in proceedings related to modification of measures, in this case, the custody of the minor and his or her international transfer of domicile.
What does the Supreme Court say? To what extent is the assessment of the minors themselves decisive when deciding, both in proceedings within Spain and in those of an international nature?
From this space we invite you to contact our team of family lawyers in Barcelona if you need help in a custody case with international character: we are specialists in this matter.
Listen to the minor in family proceedings: as long as their maturity allows it, and always if they are over 12 years old In general, the rule set by the Supreme Court (it has already done so in previous judgments) is that minors should be heard in such proceedings whenever they are over 12 years old or, when they are not yet of this age, they have sufficient maturity to be heard.
And, after all, it is they who are affected by the modifications of measures, and their welfare is the raison d’être of the judicial decision, in the absence of agreement between the parents in this regard.
Although this rule is relatively well known and established, in the case of the judgment we are commenting on (which reached the Supreme Court), this court had to uphold the appeal and annul the previous judgment precisely because the minor affected was not heard in it.
Specifically, there was a debate on the possibility for the minor, now 15 years old, to return to reside in Spain, taking into account that he had been living in Argentina with his mother since he was three years old.
The specific case responds to the appeal of the father, who sued his ex-wife requesting a modification of custody measures. The mother was the one who had custody of the child (who was three years old at the time), moving to Argentina with him.
Now, the father was requesting paternal custody, based on the impossibility of properly complying with his visitation regime on several occasions due to the mother’s lack of cooperation, as well as on the child’s desire to move to Spain.
Both the Court of First Instance and the Provincial Court rejected the claim.
In the case of the Provincial Court, although custody was not granted to the father, it was emphasized that the father had not been granted custody of the child. e, since the minor had not been heard, it was not possible to know his will, and the father’s statements were not sufficient to prove it.
However, no measures were taken to rely on his testimony in these proceedings. .
Precisamente este extremo es el que el Supremo no aprueba: el menor debió ser escuchado en este proceso y, dado que esto no ocurrió en las sentencias previas, la solución pasa por devolver el caso a la Audiencia Provincial para que efectivamente se escuche el testimonio del niño y se valore en el proceso.
Ello implica “activar los mecanismos de cooperación jurídica internacional”, tal y como recuerda el Supremo. Thus, the Supreme Court reiterated that when the age and maturity of the minor make it possible to presume that he/she has sufficient judgment and, in any case, those over 12 years of age, must be heard in the judicial proceedings in which their custody and guardianship is decided, without the party being able to waive the proposal of such evidence, which must be agreed upon, if necessary, by the judge ex officio. In this specific case, it cites that “in order for the judge or court to decide not to conduct the hearing, in the interest of the minor, the judge or court must
interest of the minor,
itwill be necessary that it be decided in a reasoned manner“, and reiterates that, in this case, “the minor should have been heard, given that due to his age he had sufficient judgment, which should have been agreed upon ex officio by the Court, knowing as it did that it was mandatory”.
The Court also points out which are the legal instruments to resort to in order to obtain this testimony.
Thus, obtaining evidence in Argentina can be requested on the basis of:
- Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 18 March 1970.
- Hague Convention on Civil Procedure of March 1, 1954.
- Inter-American Convention on letters rogatory, done at Panama on January 30, 1975.
If you have doubts in any case related to international child custody, contact our team of family lawyers in Barcelona: we are specialists in international family law.
