The Room of the Civil of the High court has dictated a sentence, of date 20 October 2014 (resource number 2680/2013), by which fixed like jurisprudential doctrine that the change of residence to the foreigner of the progenitor custodio can be judicialmente authorised only in profit and interest of the minor children under his custody that move with him.
In the case, the minor, of Brazilian mother and Spanish father, had created some affective bonds with his mother with which has been living from his birth to date, whereas with the alone father has maintained some minimum and sporadic contacts. In these conditions, signals the TS "prevails the interest of the minor, of a minor perfectly individualizado, and no the condition of national, like factor of protection of this interest to prevent the transfer" and concludes that the security and stability that provides the maternal core does not guarantee with the permanence of the mother and the son in Spain.
The sentence explains that it is not possible to oblige to the mother to continue in a country that is not his and in some familiar surroundings that neither is the one of the boy to make his familiar and labour expectations linked to the interest of his son, to the that goes associated, and is that "the respect to the rights of the boy does not involve necessarily go to the detriment of the rights of the progenitors".
The Room has take that the mother has to another son in Brazil, that the father has bad relations with his family by what these surroundings would not favour to the boy if it found work and that the communications of the son with the father guarantee by means of a just and balanced distribution of costs of scrolling.
The facts
The court of first instance of Tomelloso (Ciudad Real) that knew of the divorce of the marriage formed by a Brazilian woman and a Spanish man, in addition to conceding saves it and custody of the minor son of both to the mother, authorised the transfer of the son to Brazil, country of the that is originaria that.
The Provincial Audience of Ciudad Real, instead, conceded saves it and custody to the father and gave a lot of importance to the fact that the minor, with Spanish nationality, went to leave to another country with another culture and without knowing if his conditions of life go to be better that in Spain.
The sentence of the TS
The main arguments of the sentence of the TS to estimate the resource of cassation interposed by the mother, contain in his foundations of first right and second, that establish:
"First: ... The resource formulates it [the mother of the minor] and articulates in two motives. The first by infringement and violation of the articles 92 and 103 of the Civil Code, in relation with the articles 29 and 124 CE, and article 3 of the Convention on the rights of the boy, by wrong application of the principle of protection of the interest of the minor, when understanding the sentence resorted that, in spite of having an affective bond nearer to the mother, treats of a national, awarding the custody to the father.
In the second alleges the existence of contradictory jurisprudence of the Provincial Audiences referred to the fact of cual is the interest of protection of the minor when it pretends the start of the country. In favour and against they quote the sentences mentioned in the antecedents of this sentence.
SEGUNDO.- It estimates .
1. It says the sentence of this Room of 26 October 2012 the following: "The actions and responsibilities that derive of the homeland authority correspond to both parents of such form that any one of them, so much the one who has saves it like which no the preserve, can act in relation to his children an active position that no only involves to collaborate with the another, but take part in the taking of fundamental decisions to the upper interest of the minor. One of them the one who concerns to his transfer or scrolling in what it averts him of his usual surroundings and breaks the right to relate with the father or mother no custodio.
The homeland authority, says the article 156 of the Civil Code, will exert jointly by both progenitors or by one only with the consent express or tacit of the another. In case of disagreement, any one of the two will be able to attend to the Judge the one who, after hearing to both and to the son if had sufficient trial and, anyway, if it was main of twelve years, will attribute without ulterior resource the faculty to decide to the father or to the mother.
It supposes that all the rights and duties that comports the homeland authority have to exert always of common agreement by both progenitors and that, in case of disagreement, will be the Judge the one who determine cual of the two has to exert all or some of the faculties that the homeland authority comports and by what time, but without that this judicial intervention on the disagreements of the progenitors involve the suppression of these rights-duties of the homeland authority that exercise in a plan of equality and no of subordination.
The general rule is the conjoint exercise and the exception the attribution of all or any of the faculties that comports the homeland authority to one only of the progenitors.
Well, it saves it and custody of the minors derives of the homeland authority and of the homeland authority, among other things, derives the fixation of the familiar domicile, as it has the article 70 of the Civil Code, to give fulfillment to the foreseen in the article 68 of the Civil Code, concerning the obligation to live together. The matrimonial breaking leaves without effect the convivencia and obliges to the progenitors to put of agreement for the exercise of any of these faculties that bring cause of the homeland authority, among another the one to fix the new domicile and, like consequence, the one of the children that integrate inside the familiar group affected by the coincident breaking generally with the one of the one who has saves it and custody. We are, definitely, in front of one of the most important decisions that can adopt in the life of the minor and of the own family, that will have to have sustento in the agreement of the progenitors or in the decision of one of them spoiled expresses or tácitamente by the another, and only in defect of this agreement corresponds to the judge resolve what proceed previous identification of the sakes and rights in conflict to end to be able to calibrate of a form ponderada the need and proporcionalidad of the measure adopted, without conditioning it to the own conflict that motivates the breaking.
It is true that the Spanish Constitution, in his article 19, determines the right of the Spaniards to choose freely his residence, and to exit of Spain in the terms that the law establish. But the problem is not east. The problem arouses on the origin or improcedencia to spend the minor to reside elsewhere, what can comport a radical change so much of his social surroundings like parental,with problems of adaptation. To affect the change of residence to the interests of the minor, that owe to be preferably tutelados, could comport, a change of saves it and custody".
2. It occurs in this case that there is an evident disagreement among the parents with regard to the new residence of his son, reason by which has attended to the judicial authority, that has resolved it maintaining to the son under the custody of his father in Spain; pronouncement that does not answer to the interest of the minor affected by an undoubtedly conflictive solution, but adjusted to a reality, increasingly frequent, that is not possible obviar, as it is the one of mixed marriages. And it is that a thing is that the father have the necessary skills to have the custody of the boy, and that do not appreciate a rejection to any of them, and another distinct the content and scope of these skills concerning a boy, of short age, that has created some affective bonds with his mother with which has remained under his care from his birth to date , included the two years of separation in fact in which it left of Tomelloso to Boroughs, city in which it fixed his residence, with minimum and sporadic contacts from then with his father. The change of residence affects to a lot of things that have to see no only with the transfer to the foreigner, with different language, as it is the case, but with the habits, schooling, habits, possibly of easier assimilation when it treats of a boy of short age, and even with the costs of scrolling that comports the transfer when it produces to a country move of the surroundings of the boy by what can prevent or hamper the scrollings so much of this as of the spouse no custodio to congratulate the contacts with the boy. It is the interest of the minor the one who prevails in these cases, of a minor perfectly individualizado, and no the condition of national, like factor of protection of this interest to prevent the transfer, as it argues the sentence, skewing the relative assessment to if the minor is better with his father that with his mother, to which neither concedes saves it in front of the possible permanence in Spain. The security and stability that provides the maternal core does not guarantee with the permanence of the mother and the son in Spain. It is not possible to oblige to the mother to continue in a country that is not his and in some familiar surroundings, that neither is the one of the boy, when having it abandoned during more than two years, to make his familiar and labour expectations linked to the interest of his son, to the that goes associated, and is that, the respect to the rights of the boy does not involve necessarily go to the detriment of the rights of the progenitors.
3.- In consequence, marries the sentence and, assuming the instance, accepts the sentence of the court in which it values the test that determines the permission that denies the previous Audience assessment of the concurrent circumstances and fix foods in favour of the son to charge of the father. The circumstances that has take are these: to) [the mother] has his direct family in Brazil, no only to his father and brothers, but also to another son of 17 years; b) [the father] maintains bad relations his family by what the familiar surroundings and of gathered results insufficient to take care of his son if it found work, and c) protect the communications of the son with the father by means of a just and balanced distribution of costs of scrolling Brazil-Spain- Brazil.
4.- Fixed like jurisprudential doctrine the following: the change of residence to the foreigner of the progenitor custodio can be judicialmente authorised only in profit and interest of the minor children under his custody that move with the."
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