No process of separation or divorce is simple, much less when there are minor children born to the couple. Decisions on how child care and custody will be managed undoubtedly constitute the central issue in the negotiations of a break-up and, although shared custody – that is, exercised by both parents – is usually the general solution, sometimes it is opted for single-parent custody, that is, exercised only by one of the parents. This doesn’t mean that the other parent loses contact with the child: always considering the interest of the child, it is usual for the judge to set a visitation regime so that the child could continue to interact with those people who have been part of the family circle. What does this right consist of? How does it work when parents reside in different countries?
Visitation rights are regulated in article 94 of the Civil Code. It is not so much about a right of the parents or other relatives to see the child or satisfying the desires of parents (or grandparents), but rather covers emotional and educational needs of the children so that they could reach a balanced development. As in any case related to Family Law, the interest of the child is always the most important element.
Rights to visitation, communication and relationship of the child with the non-custodial parent is, therefore, a purely affective right that authorizes the holder to express their feelings towards another person, demanding the use of the necessary means to achieve such purpose. It is a right that is based primarily on a prior family-legal relationship between the children and the visitor.
It is also important to remember that the right to visitation is not linked to parental authority, since it persists in case one of the parents is deprived of it. It is an inalienable right, although there are specific cases of suspension and limitation of visitation rights in particularly serious circumstances.
The objective is to ensure that the visiting parent and other relatives – the child’s grandparents, for example – can maintain contact with the minor children during certain periods of time.
How is the international visitation arrangement set? A recent case
When setting the visitation regime, in general, certain aspects must be specified, such as the frequency of visits and their duration, as well as who travels and who covers the travel expenses. The objective is to adapt the solution to the circumstances that occur in each case, taking into account factors such as the minor’s age, the distance that must be travelled or the conditions of the trip, as well as the personal, family and professional circumstances of the parents (timetables and personal availability for travelling, economic resources, etc.)
Beyond what the Civil Code establishes, an important sentence issued by the Supreme Court on May 16, 2017, analyzes these issues in depth. It was a case of divorce where the father was American and the mother from Spain. In this case, the custody of the minor daughter was granted to the mother by the county court, as well as a maintenance pension in favour of the minor and a contact regime for the father was established.
According to the contact regime, the minor could visit the father during half of the Christmas holidays and half of the summer holidays. The father was supposed to cover the expenses of the minor’s trips to the United States and be responsible for collecting and returning the minor to the maternal home. A visitation arrangement was also set in case the father moved to Spain.
The sentence was appealed by the father, making it possible to extend the duration of the visits during the summer holidays to a period of one month and three weeks. This time could be spent either in Spain or in the US, at the father’s choice.
According to this sentence, due to the absence of mid-week visits because of the great distance between the parents’ homes, it was necessary to extend the period of minor’s stay with her father to compensate the time spent separately. In addition, the judge, at the request of the father, decided to reduce the maintenance allowance taking into account his economic capacity and the cost that the visitation regime with his daughter entailed for him.
Finally, the mother requested a judicial review against the sentence, which was totally rejected by the Supreme Court. According to the Supreme Court, the sentence appealed assessed the interest of the minor and the personal and economic contribution to the travels by both parents in an equitable manner, so the assessment of the circumstances of the case was adequate.
Considering the circumstances of each case
The reality is that there is no legal forecast about how the visitation system should be arranged either in general or, in particular, when the parents reside in remote places or even, as in the case, in countries situated on different continents. However, the Civil Chamber of the Supreme Court establishes that, when there is no agreement between the parents that is beneficial for the child, in cases involving long-distance travel, it will be necessary to assess the specific circumstances of each case in order to adopt the most appropriate measures in the interests of the minor.
In the case discussed above, the Court established that considering the circumstances it will be determined whether, in order to compensate for the visitation difficulty related to the distance, the duration of the visits should be extended, or if the minor can travel alone or must be accompanied by one of the parents. Apart from having valued, of course, the interest of the child.
If you need advice on custody, visitation or any other matter related to Family Law nationally or internationally, please contact me.