No separation or divorce process is simple, and even less so when there are minor children of the couple.
Decisions as to how their custody and guardianship will be implemented are undoubtedly a central issue in the negotiations of the breakup and, although joint custody -that is, custody exercised by both parents- is usually the general solution, sometimes single-parent custody is chosen, that is, custody exercised by only one of the parents.
This does not mean that the other parent loses contact with the child: always in the best interests of the child, the judge usually establishes a visitation regime so that the child can continue to interact with those who have been part of his or her family circle.
What does this right consist of?
How does it work when the parents reside in different countries?
The right of visitation is regulated in Article 94 of the Civil Code.
It is not, in itself, a right of the parent or his/her relatives to see the child, but rather consists of covering the affective and educational needs of the children in order for them to reach a balanced development, and not so much in satisfying the wishes or rights of the parents (or grandparents or other relatives).
As in any case related to Family Law, the interest of the child is always the most important.
The right of visitation, communication and relationship of the child with the non-custodial parent is, therefore, a purely affective right that authorizes its holder to express or manifest his feelings towards another person, demanding the use of the necessary means to achieve that end.
It is a right that is mainly based on a previous family legal relationship between the children and the visitor.
It is also important to remember that the right of access is not linked to parental authority, since it persists in the event that one of the parents is deprived of it.
It is an inalienable and unwaivable right, although there are specific cases of suspension and limitation of visitation rights in particularly serious circumstances.
The aim is to enable the parent leaving the family environment and his or her relatives – grandparents of the child, for example – to maintain contact with the minor children for certain periods of time.
How is international visitation decided?
A recent case
When setting the visiting arrangements, in general, certain aspects must be specified, such as the frequency of visits and their duration, as well as who travels and who bears the cost of travel.
The objective is to adapt the solution to the circumstances that arise in each case, taking into account factors such as the age of the minor, the distance to be traveled or the conditions of the trip, as well as the personal, family and professional circumstances of the parents (time and personal availability to travel, economic resources, etc.) Beyond what the Civil Code indicates, an important judgment handed down by the Supreme Court last May 16, 2017 analyzes these issues in depth.
It deals with a contentious divorce case in which the father was American and the mother Spanish.
In this case, the court of first instance established the custody and guardianship of the minor daughter to the mother, as well as a maintenance allowance in favor of the minor and a visitation regime in favor of the father.
According to this visitation regime, the minor could visit the father half of the Christmas vacations and half of the summer holidays, with the father assuming the cost of the minor’s travel to the United States, and being responsible for picking up and returning the minor to the mother’s home.
A visitation system was also regulated in the event that the father traveled to Spain.
The sentence was appealed by the father, who succeeded in extending his stay with his daughter during the summer vacations to a period of one month and three weeks.
This period could take place either in Spain or in the USA, at the father’s choice.
According to this sentence, due to the absences of inter-weekly visits caused by the great distance between the parents’ homes, it was necessary to extend the period of stays of the minor with her father in order to compensate for them . In addition, the judge, at the request of the father, decided to reduce the child support taking into account his economic capacity and the cost to him of the visitation regime with his daughter.
Finally, the mother filed an appeal in cassation against the decision of the Court of Appeals, which was totally rejected by the Supreme Court in the judgment to which we refer.
According to the Supreme Court, the appealed judgment valued the interests of the minor and the personal and economic contribution to the trips by both parents in an equitable manner, so that its assessment of the circumstances of the case was adequate.
To take into account the circumstances of each case
The reality is that there is no legal provision on how the visitation system should be organized, neither in general nor, in particular, when the parents reside in distant places or even, as in this case, in countries located on different continents.
However, the Civil Chamber of the Supreme Court establishes that, when there is no agreement between the parents that is beneficial to the child, for cases involving long-distance travel, the specific circumstances of each case must be weighed in order to adopt the most appropriate measures in the best interest of the child. In the aforementioned case, the Court established that it will be based on these circumstances that it will be determined whether, in order to compensate for the difficulty of the distance involved in the visits, these can be extended, or whether the child can travel alone or must be accompanied by one of the parents.
Apart from having assessed, of course, the interests of the child. If you need advice on custody, visitation or any other matter related to family law with national or international character, please contact me.
