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Cross-Border Divorce and Child Custody: What to do?

Every Country has different laws in matters of child custody in case of cross-border divorce.

More in detail, national laws regulate the following issues:

  • Child custody;
  • Joint or sole custody;
  • Decision-making powers over the child's education;
  • Administration of the child's properties.

Despite different regulations, all EU-Countries recognize the child's right to a personal and direct contact with both parents, even though living in different countries.

Because of this right, in cases of divorce or separation it must be determined in advance where and with whom the child will reside, whether with one parent or with both parents, where they may alternate custody.

The above decision may either be the subject of a consensual agreement or left over to the Judge.

With parents living in different countries, jurisdiction on parental responsibility is vested in the Courts of the Member State where the child is habitually resident at the time of application for child custody.

The judgement given in any Member State will be recognized in all EU-Countries, without the need of further proceedings. Recognition of the judgement may be denied in the following cases:

- in case the judgement is contrary to public order;

- in case the defendant did not have notice of the proceedings in time to prepare his/her defense;

- in case the judgement is incompatible with another judgement involving the same parties.

In matters of parental responsibility recognition of the judgement can be denied also in the following cases:

- where the child has not been given the opportunity to be heard;

- on the request of any person claiming that the judgement infringes his/her parental responsibility.

In case of disputes in matters of right of access to children which have moved to another country,the Courts of the Member State where the child was habitually resident retain jurisdiction for three months following the move.

Cross-Border Divorce and Child Custody: Jurisdiction and applicable Law 

Brussels II Regulation (EC) No. 2201/2003 is a European Regulation on jurisdiction and enforcement of judgements in matrimonial and parental responsibility matters, as well as in matters of child abduction within the European Union. It applies to all Member States, with the exception of Denmark.

The Regulation determines the jurisdictional criteria which apply to the above mentioned subjects.

In accordance with the same Regulation, jurisdiction is vested in the Courts of the Member State where the child is habitually resident at the time of application for child custody.

“Habitual residence” means the place where the child’s centre of interests is located. In order to determine a child’s habitual residence, the following elements are significant:

- duration and regularity of residence in a Member State;

- conditions of and reasons for the stay within the territory of a Member State or for the move of a family;

- child’s citizenship;

- place of school attendance;

- child’s family and social relations;

- linguistic abilities.

Cross-Border Divorce and Child Custody: The new regulations of 2020 

On 2 July 2019Council Regulation (EU) 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction” was published in the Official Journal of the European Union.

Starting from 1 August 2022 it will replace Brussels II Regulation (EC) No. 2201/2003 in all European Countries, with the exception of Denmark.

More in detail, it has the following aims:

- providing a clearer and more effective legal framework in case of child abduction within the EU;

- extending the scope of the child’s right to express his/her opinion to all the disputes in which he/she is involved;

- avoiding special procedures for recognizing judgements delivered by Courts in Member States;

- providing more exhaustive regulations on the circulation of out-of-court settlements adopted by public authorities (after the establishment of jurisdiction) in matters of divorce, separation, and parental responsibility;

- providing clearer regulations on the relocation of a child in a Member State other than that in which he/she habitually resides, including the need to obtain prior approval for any relocation, except where the child resides with only one parent;

  • Introducing common rules for the enforcement of judgements, in accordance with the laws of the Member State of enforcement;
  • providing clearerand more stringent rules on child abduction within the European Union.

Cross-Border Divorce and Child Custody: How can we help you? 

Arnone&Sicomo International Law Firm provides legal assistance for international divorce and separation matters, as well as for child custody matters.

Our offices in Spain, Turkey, Luxembourg and in the UK Inghilterra, provide assistance to any couple married in one of these countries. Our International family law attorneys offer legal advice on international divorce in Italy.

Do you want to separate or divorce from your foreign spouse but you still have doubts about the laws applicable to your case? Contact us.