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Mother refusing to return from holiday with child

  • 21-09-2019 2:01pm
    #1
    dickangel
    Registered Users Posts: 161 ✭✭


    A friend of mine is in an awful situation.

    Went on a 2 week trip to Spain with his Spanish wife and kid with dual citizenship. On arrival her father sat him down and explained she wanted a divorce and wouldn't be going home or the kid. Wife refusing to talk and engage. Whole trip seems to have been a set up.

    Anyway, obviously he's getting in touch with a solicitor and stuff. What rights does he have in this situation? Is this now a matter for the Spanish courts? Couple of us are heading out to him tomorrow.


Comments

  • #2
    strandroad
    Closed Accounts Posts: 4,676 ✭✭✭strandroad


    What age is the child and how was his/her time split between the countries so far? You can't unilaterally remove the child from their habitual residency country as per the Hague convention.


  • #3
    dickangel
    Registered Users Posts: 161 ✭✭dickangel


    strandroad wrote: »
    What age is the child and how was his/her time split between the countries so far? You can't unilaterally remove the child from their residency country.

    The child is 2. And has been on one 2 week trip to Spain last year. All other time spent here.


  • #4
    strandroad
    Closed Accounts Posts: 4,676 ✭✭✭strandroad


    dickangel wrote: »
    The child is 2. And has been on one 2 week trip to Spain last year.

    Then their habitual residency is in Ireland and it would be seen as wrongful removal to move him to Spain.


  • #5
    Dante7
    Closed Accounts Posts: 1,543 ✭✭✭Dante7


    dickangel wrote: »
    A friend of mine is in an awful situation.

    Went on a 2 week trip to Spain with his Spanish wife and kid with dual citizenship. On arrival her father sat him down and explained she wanted a divorce and wouldn't be going home or the kid. Wife refusing to talk and engage. Whole trip seems to have been a set up.

    Anyway, obviously he's getting in touch with a solicitor and stuff. What rights does he have in this situation? Is this now a matter for the Spanish courts? Couple of us are heading out to him tomorrow.

    He needs to contact the Dept. Of Justice and launch a case under the Hague Abduction Convention. As he is married to his child's mother he has automatic guardianship which is required. Both Spain and Ireland have signed up to the convention, and as long as the child was habitually resident in Ireland, and as long as there are no other reasons why the child shouldn't be returned, the Spanish Courts should return the child. In the meantime he should get a solicitor here and apply for sole custody here.


  • #6
    dickangel
    Registered Users Posts: 161 ✭✭dickangel


    Brilliant thanks a million. Just wanted some info to work with when going out to him. The wife seems to be under the impression at simply refusing to return will be adequate. Her dad has suggested he move to Spain after a divorce to have access to the child.

    Hopefully there can be a reconciliation, haven't gotten the full details yet.


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  • #7
    uck51js9zml2yt
    Closed Accounts Posts: 18,268 ✭✭✭✭uck51js9zml2yt


    Get a local solicitor and report it to the police


  • #8
    CelticRambler
    Registered Users, Registered Users 2 Posts: 6,890 ✭✭✭CelticRambler


    dickangel wrote: »
    Anyway, obviously he's getting in touch with a solicitor and stuff. What rights does he have in this situation? Is this now a matter for the Spanish courts? Couple of us are heading out to him tomorrow.

    Make sure the solicitor he contacts has experience in international childcare disputes - nothing worse than getting "bog standard" advice from a solicitor who's used to dealing with the domestic courts.

    The mother is entirely in the wrong and this attempted unlawful removal from the child's habitual jurisdiction will (should ...) stand against her in all future proceedings. That gives the father an advantage at the moment, but he must insist on having the child returned to its usual residence, and do so in a way that can be produced in court later (e.g. registered letter sent to the mother c/o wherever she's staying at the moment, copy of complaint made to the local police, etc.) Under no circumstances should he agree to anything that could be construed as tacit assent, as the mother's legal team will try to make the most of that later one.

    As the others have said, get the Dept. of Justice involved right now. A call to the Irish Embassy in Madrid would be a good idea too.

    In the meantime, depending on how good communications are between him and the in-laws, it might be worth explaining to some member of that family that he'll consider agreeing to an "easy" divorce and reasonable shared custody if the wife returns with the child right now and does things in accordance with the law; otherwise he will get the police involved, have the wife arrested and be looking for full custody.


  • #9
    CelticRambler
    Registered Users, Registered Users 2 Posts: 6,890 ✭✭✭CelticRambler


    Lola Mammoth Steam wrote: »
    Get a local solicitor ...

    :eek: Nooooo! That's completely the wrong thing do to. He needs an Irish solicitor. Contacting a Spanish solicitor, or worse, agreeing to a preliminary hearing in a Spanish court - even if it's "only" to put a stay on proceedings for a week - can be interpreted by a crafty lawyer as him agreeing to cede jurisdiction to the Spanish courts.

    Timewise, it won't make any difference to the eventual outcome if he gets his day in court next week or next month, but it'll make one hell of a difference if it's the Irish authorities that seek the return of the child rather than "some Irish fella".

    In case I haven't been clear enough: your friend should not involve any part of the Spanish legal system (solicitors, magistrates, judges, social workers ...) on his own account. It's an Irish solicitor - and the Irish Dept. of Justice - that he needs.


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