Moving abroad with your children after separation: what you cannot do

The call usually comes in the spring. A parent who moved to Tenerife or Fuerteventura for a partner, a job or the climate has separated, the children are at school in Costa Adeje or Corralejo, and home — Manchester, Hamburg, Milan — is where the grandparents, the language and the next job are. The question is always the same: I have custody, can I take the children back with me? The answer that surprises most people is that custody is not the point. Since 2021 the Civil Code says in one sentence who decides where a child lives, and the sentence names both parents. This article sets out what a separated parent cannot do, what a court will look at when asked for permission, the three doors that open when a parent leaves without it, and the smaller questions — holidays, passports, the form at the police station — that arrive long before anyone thinks of moving for good.

The rule in one sentence: residence is decided by both parents

Parental authority — patria potestad — belongs to both parents whether or not they live together, and since the 2021 reform it expressly includes the power to «decide the habitual residence of the minor, which may only be changed with the consent of both parents or, failing that, by judicial authorisation» (Código Civil, art. 154). That sentence does not ask who has custody. Custody — guarda y custodia — decides which parent the child lives with day to day; parental authority decides the big questions, and the country and town the child lives in is the biggest of them. When the parents disagree, either may go to the judge, who hears both, hears the child if mature enough and in every case from the age of twelve, and gives the decision to one of them (art. 156).

The same idea sits at the heart of the international rules. The 1980 Hague Convention defines rights of custody as the rights relating to the care of the child «and in particular the right to determine the child's place of residence» (Convention of 25 October 1980, art. 5). A parent who does not have the children living with them but shares parental authority holds that right, and a move abroad without their consent breaches it. A Spanish custody order that says nothing about moving abroad does not authorise one.

So the position of the parent who wants to leave is simple to state and hard to hear: with the other parent's written consent, the move is lawful and the agreement should go before the court to be approved; without it, the only lawful route is a judge's authorisation, obtained before the move, never after.

Asking the court: what the judge weighs

The Supreme Court fixed the doctrine in 2014 in the case of a mother who wished to return to her country of origin with the child: «the change of residence abroad of the custodial parent may be judicially authorised only for the benefit and in the interest of the minor children in their custody who move with them» — and it is the interest of that particular child that decides, «not the condition of national» of either the parent or the child (STS 536/2014, 20 October 2014). The Court has repeated the test since, in 2017, 2018, 2020 and 2021, and the courts of first instance in Arona and Puerto del Rosario apply it every week.

In practice the judge weighs a short list. The age of the children and the roots they have here — school, friends, doctors, the other parent's family. The parent's roots in the destination: a job offer, housing, a family network, not a hope. The motive: a genuine change of life is weighed differently from a move whose effect is to cut the other parent out. The plan for contact: how the other parent will see the children, how often, who pays the flights, how school holidays are split, whether video calls are written into the timetable. The child's own voice, always from twelve and earlier when mature. And the timing: a move at the end of a school year is one thing, a move in February another.

The procedure depends on what the move changes. If it changes the custody and contact regime — and a move from Tenerife to Manchester always does — the parent asks for a modificación de medidas before the family court that issued the original measures, presenting the new regime they propose. If the only disagreement is the move itself, the Voluntary Jurisdiction Act offers a faster file for disagreements in the exercise of parental authority, before the court of the child's domicile, with the public prosecutor present, the child heard from twelve, and no obligation to appear with a lawyer — an obligation we would never let a client waive (Ley 15/2015, arts. 85–86). In either route the parent who wants to move carries the burden of showing that the children gain.

Two things a court will not do. It will not authorise a move that has already happened as if it were a request. And it will not treat the moving parent's project — however legitimate — as the question: the question is which arrangement protects the child better, and a court that finds the answer is «stay» may go further and place custody with the parent who stays.

Leaving without consent: the three doors that open

A parent who takes the children abroad without the other's consent or a court's authorisation opens three proceedings at once.

• The return. Between the more than a hundred States that have joined the Hague Convention, a removal that breaches rights of custody is wrongful (art. 3), and the courts of the country the child was taken to must order the return where the application is made within a year, and after a year too unless the child is shown to be settled (art. 12). The defences are narrow: the other parent consented or later acquiesced, or return would expose the child to a grave risk of physical or psychological harm, or a child old and mature enough objects (art. 13); the Convention stops applying at sixteen (art. 4). Inside the European Union the Brussels II-ter Regulation adds a clock and a lock: the courts must decide within six weeks per instance, the courts of the country the child lived in keep jurisdiction over custody after a wrongful removal (Regulation 2019/1111, arts. 9 and 24), and a court may not refuse return on the grave-risk defence if adequate arrangements for the child's protection after return are shown (art. 27). In Spain the return procedure is urgent: admission within twenty-four hours, the child brought before the court within three days, a hearing within five, six weeks for both instances together, before the family court of the provincial capital — Santa Cruz or Las Palmas (Ley de Enjuiciamiento Civil, arts. 778 quater and quinquies). With the United Kingdom, since Brexit, the Convention alone applies; with a State outside it, there is no return mechanism at all, only that country's courts.
• The crime. The Criminal Code punishes the parent who, without justified cause, takes a child «from their place of habitual residence without the consent of the other parent» or retains the child in serious breach of a court order, with two to four years' imprisonment and four to ten years' disqualification from parental authority; if the child is taken abroad, the sentence is set in its upper half. There is no offence if the parent tells the other within twenty-four hours where the child is and returns them at once, and a reduced sentence if the child is returned within fifteen days (Código Penal, art. 225 bis). The same penalties reach grandparents and relatives who take part.
• The custody. The civil court that fixed the measures treats a unilateral move as a serious breach of the duties of parental authority, and the parent who moved may return to find that custody has been placed with the parent who stayed, and their own contact reduced to what the distance allows.

None of those doors closes because the moving parent is the mother, or a national of the destination, or convinced the move is right. What closes them is a signature or a court order, obtained first.

Holidays are not a move: the travel form and the passport

A fortnight at the grandparents' is not a change of residence, and the ordinary rules are lighter. Since September 2019, a minor under eighteen who travels outside Spain without any of their legal representatives needs, besides an ID or passport, a signed travel declaration, made at a National Police station, a Guardia Civil post, a court, a notary or a town hall; the parent who signs declares that they hold «the consent of the other parent (if there is one)» and the permit is limited to the dates of the trip (Instrucción 10/2019 de la Secretaría de Estado de Seguridad). A parent travelling with the child is not required by that instruction to carry it, but airlines and several destination countries ask for the other parent's written consent, and we draft it in two languages for every client who flies with children after a separation.

Two heavier instruments exist for cases where a move is feared. The court may, in any proceeding or on application, prohibit the child from leaving Spain without prior judicial authorisation, order that no passport be issued or that an existing one be surrendered, and require judicial authorisation for any change of the child's domicile (Código Civil, art. 158.3º). And a Spanish passport for a minor is issued only with the express consent of both holders of parental authority — given before the police or a notary — or, failing that, with a judge's authorisation (Real Decreto 896/2003, art. 4). Foreign passports follow the rules of the issuing country, which is why we ask both parents' nationalities in the first meeting.

What to write into the agreement now

The best time to settle the question is the separation itself. A convenio regulador drafted with international families in mind contains a relocation clause — what notice a move requires, that it needs the other parent's written consent or a court's authorisation, and what contact regime applies if a move is authorised; a travel protocol for holidays, with the destinations, the dates, the documents and who holds the passports; the split of school holidays and the cost of flights; the channel and timetable for calls; and a mediation clause, which is also what the European rules invite the courts to propose in every return case (Regulation 2019/1111, art. 25). Our guide to divorce in Spain for foreign couples explains how the agreement is approved, and our note on school decisions for separated parents covers the other decision that both parents keep.

A relocation checklist for parents on the islands

• Read your measures: the custody order, the convenio and any clause on residence or travel; nothing in them authorises a move abroad unless it says so.
• Ask in writing, early: a proposal with the destination, the housing, the school, the contact plan and the flight costs is what a court will later want to see, and what a reasonable co-parent may accept.
• If the answer is no, file before you pack: modification of measures with the new regime, or the voluntary-jurisdiction file if only the move is disputed; count on months, and plan the move for a school-year end.
• Never move first: a return under the Hague Convention, a criminal complaint and a change of custody can all follow within weeks.
• Holidays: carry the papers: the police declaration when the child travels without a parent, a bilingual consent when they travel with one, and the passport rules of both nationalities.
• Fear a removal? Ask the court for the exit prohibition and the passport measures of article 158 before it happens, not after.

Custody says where the child sleeps. Parental authority says which country. After a separation the second is still shared, and no plane ticket changes it.

Our family team in Costa Adeje and Corralejo drafts relocation and travel clauses for international couples, prepares applications for judicial authorisation to move with the children, defends and brings return proceedings under the Hague Convention and the European rules, and obtains the protective measures of article 158 when a removal is feared. Read how we work in family law, or book a consultation with our offices in Tenerife or Fuerteventura.

Common questions

I have sole custody. Can I move abroad with my children without asking?

No. Custody decides which parent the children live with; the power to change their habitual residence belongs to parental authority, which both parents keep after a separation. Since 2021 the Civil Code requires the consent of both parents or a judge's authorisation for any change of the child's habitual residence, and the Hague Convention treats a move without the other parent's consent as a wrongful removal.

How long does a court take to authorise a move?

A modification of measures before the family courts of Arona or Puerto del Rosario is measured in months, not weeks, and the calendar depends on the court's load and on whether a psychosocial report is ordered. The voluntary-jurisdiction file for disagreements in parental authority is faster. Either way, a parent who plans a move for the end of a school year should file at the start of it.

What happens if the other parent takes the children to another country?

Three things can start at once: an application for return under the Hague Convention through the Spanish Central Authority or directly before the courts of that country, decided within six weeks inside the EU; a criminal complaint for child abduction, which carries two to four years' imprisonment and is aggravated when the child is taken abroad; and a request to the Spanish court to change custody. The first weeks matter: the Convention presumes return when the application is made within a year.

Do I need the other parent's permission for a holiday abroad with my child?

Spanish law requires the signed police declaration when a minor travels without any legal representative. A parent travelling with the child does not need it under the 2019 instruction, but many airlines and destination countries ask for the other parent's written consent, and a court order may have prohibited the child from leaving Spain at all. Carry the custody order, a bilingual consent and the child's documents.

Can a court stop my ex-partner from taking our child out of Spain?

Yes. On application, the court may prohibit the child from leaving Spain without prior judicial authorisation, order that no passport be issued or that the existing one be handed in, and make any change of the child's domicile subject to judicial authorisation. The measures can be requested within the divorce proceedings or in a separate file, and are the right answer to a credible fear — before the flight, not after.

This article is general information about Spanish and European law as it stands at the date of publication, not legal advice for your specific situation. Relocation cases turn on the facts of each family and on the country involved; have yours reviewed with your own documents before any decision.