How is jurisdiction decided in an international custody dispute?

If you are currently in mode “They’re going to take it away from me / They’ve already taken it”You need one thing above all else: to know which judge can decide (and which one doesn't), for Not waste time in the wrong country.

The key is this: en international custodyJurisdiction is not decided by "who is right", but technical rules that seek to avoid the shopping forum (choose the most favorable country) and protect the child's stability.

In the EU, the Brussels II ter Regulation (EU 2019/1111), applicable from August 1th, 2022and applies to proceedings initiated from that date; proceedings initiated before that date continue to be governed by the Regulation (EC) No 2201/2003 (Brussels II bis)Outside the EU, the main framework is the Hague Convention of 1996 (jurisdiction and protection measures) and, in cases of abduction, the Hague Convention of 1980 (restitution).

Where do I need to file a claim so I don't waste time?

Ask yourself these 4 questions (in this order):

1. Is the conflict with another EU country (excluding Denmark) or with a third country (UK/LatAm/Maghreb, etc.)?
   In the EU, Brussels II ter generally applies; Denmark is the exception with regard to this Regulation.
2. Where does the minor have his/her "habitual residence" when you file the claim (time of going to the jurisdictional body)?
   (General rule).
   If there is subtraction: Where did I have it? immediately before of unlawful transfer/retention? (Special Rule).
3. Are we dealing with an “unlawful transfer or retention” (abduction) or with a “legal/consensual” change?
   If there is theft, the jurisdiction it doesn't "move" automatically to the new country.
4. Do you need urgent measures today (blocking exit, protection, etc.) in addition to the main lawsuit?
   There may be provisional measures in the country where the minor is present, even if the fund is decided in another.

Restitution or custody? You usually need two options (and they're not the same).

In real crises (theft, threats, “Temporary” journey which becomes permanent), two planes are mixed:

Restitution procedure (if there is theft)

El Hague Convention of 1980 creates a mechanism to achieve immediate restitution from the minor to the State where he had his habitual residence, and establishes an urgent procedure.

Note (EU–EU): Among member states, the return is based on the 1980 Hague Convention, complemented by Brussels II ter.

Important: the decision on restitution It is not a "custodial" decision on the merits.

The Convention states it expressly: the decision to return does not prejudge the bottom.

"Substantive" proceedings (custody/parental measures)

That's up to the judge to decide. competent by jurisdiction (normally: habitual residence of the minor). In the EU, the general rule is in Brussels II ter.

Useful translation: You can (and often must) fight restitution in the country where the child is now, while you protect the substantive jurisdiction in the right country.

What does “habitual residence” mean and why is it so important?

La habitual residence It is the heart of everything.

And here many people make mistakes out of panic: they don't decide based solely on a piece of paper, a census record, or a school registration.

The European practical guide on Brussels II ter (with case law from the CJEU) emphasizes three ideas:

• The usual residence It is not defined rigidly and must be valued case by case.
• La Physical presence alone is not enoughWe need to see if that presence is temporary or occasional, or if it reveals integration in a social and family environment.
• Factors such as duration and regularity of stay, conditions and reasons for the move, schooling, family and social relationships, etc.

Why this matters to you today: in a subtractionThe person who takes the child often tries to "fabricate" a permanent residence (school, pediatrician, registration at the town hall). That can be evidence, yes, but it doesn't magically transform the new country is competent if the transfer was unlawful and the legal conditions are not met.

If it's the EU: Does Spain still have jurisdiction or does the destination country take over?

Regulation (EU) 2019/1111 (Brussels II ter) governs jurisdiction in matters of parental responsibility and abduction in the EU, and has been in force since August 1th, 2022.

General rule (EU)

The competent courts in matters of parental responsibility are those of Member State of habitual residence of the child at the time the case is brought before the court.

If there was unlawful transfer or retention (abduction): jurisdiction “remains” in the country of origin

In case of unlawful transfer/retention, the courts of the Member State where the minor habitually resided before retain competence to that the minor acquires habitual residence in another Member State y strict conditions must be met (consent of the rights holder) custodyor integration + 1 year + additional requirements).

This detail is invaluable in an emergency: even if the other parent "runs" to the country where the child was taken, That doesn't automatically make that country competent. to decide on the custody of the fund.

EU definition of wrongful transfer/retention

Brussels II ter defines unlawful transfer/retention when a custody right is infringed (by resolution, law or agreement) and that right was effectively exercised (or would have been exercised).

Can the court be chosen?

Yes, but with conditions: close link of the child with the chosen State + agreement/informed acceptance of the parties + best interests of the child.
In situations of actual theft, this is rarely the "fast" way if there is no solid agreement.

What if habitual residence cannot be determined?

Brussels II ter foresees competition based on presence of the minor when habitual residence cannot be determined and the choice of forum does not apply.

Urgent measures are needed, even if the fund is from another country.

In case of emergency, a Member State may adopt provisional/precautionary measures regarding persons or property located in that State (for example, the minor if present there)even if the fund is managed by another Member State; and these measures lapse when the competent court adopts its own.

If it is outside the EU: what rule applies and which country decides on custody?

This presupposes that the other State is a party to the 1996 Hague Convention (and, if you are seeking reversion, to the 1980 Convention). If it is not, you must resort to domestic laws and/or other avenues of cooperation (the Hague Convention cannot be applied "automatically").

Substantive jurisdiction: 1996 Hague Convention

As a general rule, the competent authorities are those of the State of child's usual residence.

If there was an unlawful transfer or retention: jurisdiction does not change "just because"

The 1996 Convention maintains the jurisdiction of the State of previous habitual residence in cases of wrongful removal/retention, and allows the State to which the child was taken to adopt only necessary urgent measures (under art. 11).

Urgent and provisional measures (key in crisis)

• Urgency: The necessary protective measures may be taken by the authorities of any State where the child is present or where there are assets.
• Provisional and territorial measures: The State where the child is located may adopt provisional measures with limited territorial effectiveness, provided that they are not incompatible with measures of the competent State.

This is what usually allows you to act quickly to "freeze" the situation while fighting for competition/return.

If there are already procedures in two countries

The 1996 Convention incorporates a standard "first in time" rule: if measures have already been requested before competent authorities (arts. 5 to 10), the others must refrain from doing so while it is in process, except for a declinatory plea.

Restitution (The Hague 1980): time limits, criteria and why it affects jurisdiction

If the destination country is part of the 1980 ConventionThe goal is "rapid" restitution:

• It applies to minors who were habitually resident in a Contracting State before the infringement and It stops applying at age 16.
• If the procedure is initiated before 1 year from the unlawful transfer/retention, the competent authority will order immediate restitution (with some exceptions). Even after the year has passed, it can be ordered, unless there is proof of integration.
• The system is designed as in urgent needIf there is no decision within 6 weeks, an explanation for the delay can be requested.
• And, very importantly: the required State It should not decide on the custody fund until it is determined that restitution is not warranted or a reasonable amount of time has passed without a request.

This relates to your question: The return does not "give" custody, but protect that the matter be decided where it belongs, preventing the kidnapping from changing jurisdiction through de facto means.

If the country they take him to No. As a party to the 1980 Convention, Spain warns that that instrument of restitution cannot be applied (We need to explore other avenues).

If there are already lawsuits in two countries: which judge decides first?

In the EU, Brussels II ter provides that, if there are claims concerning the same minor with the same object and cause in different States, the second court must suspend until the competence of the first is established (except in the specific case of competence based solely on urgent measures under Article 15).

Practical translation: Presenting "something" hastily in the wrong country may not help you; and presenting the right thing in the competent country on time may block maneuvers on the other side.

Quick checklist: what a judge looks at to decide jurisdiction

If you're in a triggering scenario (threat, banknotes, school transfer, completed theft), prepare this us:

Proof of habitual residence (before the conflict)

• School/nursery, pediatrician, activities, registration (if applicable), rental/mortgage contracts, payslips, family life.
• Actual schedule of the child's stays (weeks/months), not "versions".

The habitual residence is decided by factual circumstances and integrationnot because of a single document.

Evidence of lack of consent (if applicable)

• Messages/emails/WhatsApp where you deny the transfer or where it is acknowledged that there is no agreement.
• Any prior restrictions on passport/exits (if any).

In the EU, consent is one of the ways in which competition can change after a takeover.
In The Hague 1980, subsequent consent/acceptance also appears as an exception to restitution.

Data to activate international cooperation

In Spain, the Ministry of Justice acts as the central authority on international child abduction and channels cooperation (and explains the applicable Conventions framework on its website).

If it's the United Kingdom (UK): what changes after Brexit?

If the other country is the United Kingdom, Brussels IIa/II ter does not govern as an EU-EU systemThe British government's own guide explains that Brussels IIa was revoked in the United Kingdom and that, for new cases of parental responsibility, the following is used: Hague Convention of 1996.

For subtraction, the United Kingdom indicates the use of Hague Convention of 1980 as the main mechanism with EU countries (and other States Parties).

Real risks: what NOT to do if I want to protect the jurisdiction

Without exaggerating, these are the mistakes I see most often in international cases:

• Waiting "to see if he comes back" while the child integrates into the new country (time is a factor in integration tests and in the 1-year return thresholds).
• Signing ambiguous “temporary agreements” (or sending messages that appear to be consent). In the EU, consent directly affects competition in theft.
• Confusing return with custody: Winning or losing a restitution is not equivalent to winning or losing “the custody definitive.”
• Going only for the substantive issue Without urgent measures, when the immediate risk is exit/concealment: the instruments provide for urgent and provisional measures for presence.

Closing: How jurisdiction is “decided”, in one sentence

In an international custody dispute, jurisdiction is determined primarily due to the child's habitual residence; if there is subtraction, the system protects the competition of the State of origin and enables procedures for urgent restitution y provisional measures to prevent the completed act from changing the competent judge.

RRYP Global, lawyers of international child abduction.