International custody and changes of residence: when a move can create a legal problem

In an international context, a transfer can shift the child's legal center of gravity : which court has jurisdiction, which law applies, what measures can be implemented, and how quickly.

And that, for a parent who wants to plan, is the real risk: making a seemingly reasonable decision.

This article explains when a change of residence becomes a serious legal problem and what strategic approach helps to avoid irreversible scenarios.

The concept that changes everything: the child's "habitual residence"

The habitual residence serves as an anchor to decide which authorities can take measures (custody, visits, educational decisions, child protection).

According to the 1996 Hague Convention on Jurisdiction, Applicable Law and Cooperation in Matters of Parental Responsibility between States Parties:

• General competence: State authorities habitual residence of the minor (art. 5.1).
• Change of usual residence: the competition passes to the new State “without prejudice” of the regime unlawful displacement/retention (Art. 5.2).
• If the transfer or retention is unlawful: the Convention provides that the State of the former habitual residence retains jurisdiction until conditions are met (Art. 7).

Within the EU, there is also a specific framework for parental responsibility and the circulation of judgments (the so-called “Brussels II ter”, Regulation (EU) 2019/1111 ), applicable to proceedings initiated from 1 August 2022. It does not apply to Denmark.

In the case of unlawful transfer/retention within the EU, the jurisdiction of the State of previous habitual residence is maintained (Art. 9 of 2019/1111).

If a move establishes a new permanent residence, it can also establish a new legal jurisdiction . And regaining control afterward is often more difficult than planning ahead.

Having custody doesn't mean you can move out

One of the most frequent mistakes in international custody is confusing guardianship and custody with the ability to unilaterally decide a change of country or city.

In Spain, when there is shared parental authority, the exercise is joint and, if there is disagreement about relevant decisions, either of the parents can go to the judge to have the power to decide attributed to one of them (with time limits in certain cases).

An international change of residence is usually considered a high-impact decision : it affects schooling, health, routines, relationship with the other parent and, above all, the legal map itself.

When does a transfer become a legal problem?

1) When consent is ambiguous (or impossible to prove)

In a cross-border conflict, what is not well documented tends not to exist.

A common example: you relocate for work "by agreement", and months later the other party claims that they never authorized a permanent change, only a temporary trip.

2) When the transfer changes (or may change) the competent court

If the minor becomes habitually resident in another country, that country is often in a position to decide on future measures, in accordance with the rules of jurisdiction based on habitual residence.

3) When the change of school, doctor or registration consolidates the facts

In international custody, examples such as: school enrollment, registration, medical records, activities or roots are indications of habitual residence and integration.

If conflict arises, those actions usually have more power than intentions.

4) When the destination country is not in the same cooperation framework

Within the EU, Regulation (EU) 2019/1111 seeks to provide predictability (competence, recognition and enforcement).

Outside the EU, the picture depends on applicable conventions (e.g., The Hague 1996 for parental responsibility and The Hague 1980 for wrongful abduction/retention) and how well actual cooperation between authorities works.

If fate does not cooperate in the same way, the execution may be slower and more uncertain.

5) When the transfer is unilateral: from civil proceedings to criminal risk

If the transfer is done without the consent of the other parent (or against a court order) a serious problem may arise.

In Spain, Article 225 bis of the Penal Code criminalizes the abduction of minors when a parent, without justified cause , abducts their minor child.

For these purposes, abduction is considered to be (i) the transfer of the minor from his or her usual place of residence without the consent of the other parent or of the persons or institutions to whom his or her guardianship or custody was entrusted , and (ii) the retention in serious breach of the duty established by judicial or administrative resolution.

The penalty is increased if the minor is transferred outside of Spain or if a condition is required for their return.

And on the international civil level, the 1980 Hague Convention aims at the immediate return of the wrongfully removed or retained child, applying (in general) up to the age of 16 and with habitual residence as the reference.

When is a transfer considered lawful or unlawful?

In international custody, “lawful” means that there is valid consent or competent authorization/decision.

• If the transfer is lawfulThe system tends to "accompany" the change: the competition can migrate to the new usual residence.
• If the transfer is illicitThe system tends to "correct" the movement: return of the minor (Haya 1980) and urgent measures to avoid consolidation.

Therefore, the best time to secure your position is not when the conflict erupts, but before the change happens.

According to Article 156 of the Civil Code , parental authority shall be exercised jointly by both parents (unless the other consents, social custom/urgent need exists) and, in case of disagreement , either of them may go to the judicial authority so that, after hearing them (and the minor if appropriate), it may assign the power to decide to one of them; if the disagreements are repeated, the measure cannot exceed two years.

Furthermore, Article 154.3 of the Civil Code expressly includes the decision regarding the place of habitual residence , which can only be modified with the consent of both parties or, failing that, by judicial authorization.

How to plan a change of residence without creating a future dispute

The goal is to maintain a viable relationship with your child without litigating in two countries.

To clarify this objective, several layers are proposed:

First layer: applicable framework and actual implementation.

EU/non-EU, applicable conventions, ease of recognition and enforcement, and reasonable timeframes.

Second layer: formal decision and solid evidence.

When the transfer is structural, a solution with executive force (formalized/approved agreement or resolution) is usually preferable to an informal pact.

Third layer: design of the stay regime and daily life.

Realistic international calendar (flights, school, holidays), passport rules, travel authorization, communication, and dispute resolution mechanisms.

And a relevant point in Spain: since 2025 the idea of ​​trying ADR (appropriate means of dispute resolution) in certain areas before going to court has been reinforced , with entry into force on April 3, 2025 according to official information.

In families with children, this does not replace urgent measures when there is a risk, but it does influence how a "plannable" conflict presents itself.

Conclusion: the move is not the problem

In international custody, a transfer can be perfectly legitimate and beneficial for the child.

The legal problem arises when the move is made without architecture : without clear consent, without an enforceable title, without an international stay plan, and without measuring the effect on habitual residence and jurisdiction.

The strategy is simple to formulate (and demanding to execute): decide before moving , and only move with a framework that you can enforce if the climate between parents changes tomorrow.

FAQ (5 frequently asked questions)

RRYP Global, international custody lawyers in Spain.