EUPillar Carlos José vs. María Esther.Roj: SAP IB 1433/2009

Summary

Conflict of jurisdiction raised before Spanish courts and resolved on the basis of Brussels II a Regulation provisions. Key facts: Parental responsibility case transacted in Spain. Separated couple. The mother changes her habitual residence from Spain to Germany. The son of the separated couple goes living to Germany with his mother. The father, who lives in Spain, appeals. Court decision: Spanish courts are competent to decide on the case according to art. 8 of Brussels II a Regulation (the habitual residence of the child was in Spain at the moment his father brought the civil action before justice). The concept of custody must be interpreted according to art. 2.9 of Brussels II a Regulation. The mother did not commit a child abduction crime when she transferred her son to Germany as she had a right of custody on the child (art. 2.11 of Brussels II a Regulation). The court decides a modification of the visiting arrangement in benefit of the father taking into account that the new residence of the child will be in Germany. The court applies correctly the general rules of the Regulation on jurisdiction in matters of parental responsibility over a child who is habitually resident in a Member State at the time the court is seized. The court makes an interpretation of the concept of custody according to the European Regulation on parental responsibility and not according to Spanish law (the Spanish Civil Code does not include a clear definition of the figure of "parental responsibility" and its connection with a right of custody). Appeal history (not available in the database): Court decision: Juzgado de Primera Instancia número 4 de Ibiza (Spain) (First instance) Date:22-10-2008