Your ex wants to take the child to another city or country
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
It is not her decision alone. The third paragraph of article 156 of the Código Civil allows either parent to go to court when they disagree over the exercise of parental responsibility. If there is a risk of departure, article 158 allows it to be banned and the passport withdrawn. If the child has already gone, article 778 quáter sets a total period of six weeks.
The judgment gave custody to the mother and stays with you on alternate weekends. Three weeks ago she told you that in September she is moving to Germany with a job offer and that the child, aged seven, goes with her. She has already looked at a school there and applied to renew his passport. You have signed nothing and were never asked. You have been told that, since she has custody, she decides where the child lives and all you can do is adjust the visits.
The case, in five lines
- What is brought
- A parental responsibility disagreement case under article 156 of the Código Civil, with article 158 measures, or a claim to modify measures if the move forces the whole arrangement to be reordered. If the child has already left, international return proceedings under article 778 quáter of the Ley de Enjuiciamiento Civil.
- Before which court
- The sección de familia del Tribunal de Instancia (the family section of the first-instance court) of the child's domicile or residence or, where joint exercise was set by a judicial decision, the one that issued it. International return goes to the Tribunal de Instancia of the provincial capital with family jurisdiction where the child is located.
- Deadline
- The disagreement has no lapse period, but it is resolved before the move or it is worth nothing. If the child has left, article 778 quáter imposes an unavoidable total period of six weeks across both instances from the filing of the application, save in exceptional circumstances.
- Who can bring it
- Both parents, individually or jointly, for the article 156 disagreement. Article 158 measures may be adopted of the court's own motion or at the request of the child, any relative or the public prosecutor.
- Financial risk
- The court may give the power to decide to the other parent and allow the move, leaving stays and travel costs to be reordered. Blocking a reasonable move without an argument about the child's interest damages your position in any later review of the arrangement.
Moving the child abroad is not decided by the parent he lives with
Custody divides who lives with the child; parental responsibility divides who decides. Article 156 of the Código Civil provides that parental responsibility is exercised jointly by both parents, or by one alone with the other's express or tacit consent, and saves only acts carried out in accordance with social usage and the circumstances or in situations of urgent necessity. Moving country is neither of those.
The practical consequence is that the move is not announced, it is agreed. Where there is no agreement, neither parent can impose it alone, and a parent who leaves without judicial authorisation or the other's consent is not exercising custody: they are creating a situation that will later have to be undone through a far harder process and on a calendar nobody controls.
It is worth answering in writing and early. A clear message stating that you do not consent to the move destroys any later claim of tacit consent, which is exactly what article 156 accepts as an alternative to express consent. That document, with its date, becomes the first piece of evidence in the case and shapes everything that follows.
The disagreement is resolved by giving one parent the power to decide
The third paragraph of article 156 states what the court does: in the event of disagreement over the exercise of parental responsibility, either parent may go to court, which, after hearing both of them and the child if mature enough and in all cases if over twelve, will give the power to decide to one of the two parents. No abstract rule is laid down: this specific decision is resolved.
The same paragraph provides a sterner answer for chronic conflict: where disagreements are repeated or any other cause seriously hinders the exercise of parental responsibility, the court may assign it wholly or partly to one parent or distribute their functions between them, in force for the period set, which may never exceed two years.
The route is in Ley 15/2015. Its article 86 applies these provisions to disagreements in the joint exercise of parental responsibility, gives jurisdiction to the court of the child's domicile or residence or, where joint exercise was set by a judicial decision, to the court that issued it, and gives standing to both parents individually or jointly. Article 85 requires the applicant, the prosecutor, the parents and any child over twelve to be summoned to a hearing.
Article 158 blocks the departure before it happens
Where the risk is imminent, article 158 of the Código Civil provides three concrete measures to prevent the abduction of minor children by a parent: a ban on leaving the national territory without prior judicial authorisation, a ban on issuing the child's passport or its withdrawal if already issued, and the requirement of prior judicial authorisation for any change in the child's home.
That same article adds that all these measures may be adopted within any civil or criminal proceedings, or in a jurisdicción voluntaria case, in which the court must guarantee that the child is heard. In other words, there is no need to wait for a pending modification claim in order to seek them: they are available from day one and in whatever route is already open.
Ley 15/2015 confirms the route. Its article 87 applies precisely to the adoption of the child protection measures set out in article 158 of the Código Civil, gives jurisdiction to the court of the child's domicile or residence, or to the one that heard the initial case where custody was set judicially, and allows them to be adopted of the court's own motion or at the request of the child, any relative or the public prosecutor.
If the child has already gone, the clock runs in six weeks
Article 778 quáter of the Ley de Enjuiciamiento Civil governs cases where, an international convention or European Union rules being applicable, the return of a child to the place of origin is sought because of a wrongful removal or retention. It also provides that the proceedings are urgent and take priority and must be completed, across both instances, within an unavoidable total period of six weeks from the filing of the application.
That same article shuts the door on delaying tactics: the civil proceedings may in no case be stayed on account of parallel criminal proceedings for child abduction. And it requires the parties to act with a lawyer and be represented by a procurador, so the position has to be built from the very first pleading.
While the case lasts, the child is not left unprotected. The court may order, of its own motion or at the request of the applicant or the prosecutor, the interim and protective measures it considers appropriate under article 773, in addition to those of article 158 of the Código Civil, and may secure rights of stay, contact and communication with the applicant, including on a supervised basis.
The declaration that the removal was wrongful is obtained here
Where the child was habitually resident in Spain, article 778 sexies allows any interested person to apply, outside the return proceedings, to the court with jurisdiction over the merits for a decision specifying that the removal or retention was wrongful, using the routes of Title I of Book IV and even the measures of article 158.
The same article identifies who issues the certificate provided for in article 15 of the Hague Convention of 25 October 1980 on the civil aspects of international child abduction, evidencing that the removal was wrongful within the meaning of article 3 of that Convention: the last judicial authority in Spain to have heard any parental responsibility case concerning the child and, failing that, the court of the child's last domicile in Spain.
Choosing the right route decides the pace. If the move has not yet happened and the conflict is one specific decision, the article 156 case with article 158 measures is fast and direct. If the move forces stays, travel costs and the school calendar to be redone, the right course is a claim to modify measures, which reorders the whole arrangement instead of resolving a single question.
How we run the case, step by step
- 1
Putting in writing that you do not consent to the move
We give clear, dated notice of your opposition to the change of residence. Article 156 accepts tacit consent, so prolonged silence after an announced move can later be argued as acquiescence.
- 2
Measuring the real risk of immediate departure
We check objective signals: passport applied for, school place booked, employment contract signed, housing rented or tickets bought. Whether the article 158 measures are sought as a matter of urgency depends on that check.
- 3
Applying for the article 158 measures
We seek the ban on leaving the national territory without prior judicial authorisation, the ban on issuing or the withdrawal of the child's passport, and the requirement of prior judicial authorisation for any change of home.
- 4
Raising the disagreement or the modification of measures
If the conflict is the specific decision, we use the article 156 case under articles 85 and 86 of Ley 15/2015. If the move forces the whole arrangement to be redone, we claim modification of the existing measures.
- 5
Hearing, listening to the child and decision
The hearing takes place with the prosecutor and the parents, and with the child if mature enough and in all cases if over twelve. The decision gives the power to decide to one parent and sets whatever measures are appropriate.
- 6
International return if the child has already left
We activate the article 778 quáter route, with a total period of six weeks across both instances, and seek in Spain the wrongfulness decision of article 778 sexies to attach to the proceedings opened in the other country.
The evidence that decides the case
- The dated message in which you oppose the move, and hers announcing it, which fix the moment the disagreement arose.
- The application to renew the child's passport, the foreign school booking or the employment contract, which prove the departure is imminent and not hypothetical.
- The child's real roots here: school reports, activities, continuing medical care and relationship with the extended family.
- The record of how the contact arrangement was actually complied with over the past year, which measures what the child would lose by moving.
- The other party's concrete plan: where they would live, on what income, in which school and how the relationship with you would be maintained.
- Hearing the child where he is mature enough, and in all cases once he has turned twelve, as article 156 requires.
What closes the door
- Staying silent for weeks after the move is announced. Article 156 accepts tacit consent for the exercise of parental responsibility, and prolonged silence is later argued as acquiescence in the change of residence.
- Waiting until the child is abroad to react. Before departure an article 156 disagreement with article 158 measures is enough; afterwards international return proceedings are needed in the country where the child is.
- Objecting flatly, without addressing the child's interest. The court decides on that specific question, and an objection built only on the conflict between adults weakens your position in the decision and in any later review.
- Keeping the child yourself to prevent the move. That is exactly the conduct article 158 seeks to avoid, and it puts whoever does it in the position of the parent removing or retaining wrongfully.
- Trusting that criminal proceedings for abduction will secure the return. Article 778 quáter prohibits staying the civil proceedings for parallel criminal matters, and it is the civil route that returns the child within six weeks.
The law that applies
- Art. 156 CC. Parental responsibility is exercised jointly by both parents, or by one with the other's express or tacit consent, and in the event of disagreement either may go to court, which, after hearing both of them and the child if mature enough, and in all cases if over twelve, will give the power to decide to one of them, and may go so far as to distribute functions for a maximum of two years where disagreements are repeated. BOE-A-1889-4763
- Art. 158 CC. Allows the court to order, of its own motion or at the request of the child, any relative or the public prosecutor, the measures needed to prevent the child's abduction, among them a ban on leaving the national territory without prior judicial authorisation, a ban on or withdrawal of the passport, and the requirement of prior judicial authorisation for any change of home, and makes clear they are available in any civil or criminal proceedings or in a jurisdicción voluntaria case. BOE-A-1889-4763
- Art. 86 LJV. Applies that section to disagreements in the joint exercise of parental responsibility, gives jurisdiction to the court of the child's domicile or, failing that, residence, or to the court that issued the decision establishing joint exercise, and gives standing to both parents individually or jointly. BOE-A-2015-7391
- Art. 85 LJV. Requires the applicant, the public prosecutor, the parents and the child if mature enough, and in all cases if over twelve, to be summoned to a hearing, allows steps to be taken during the hearing with the minutes served afterwards for submissions within five days, and makes clear that a lawyer and procurador are not compulsory in these cases. BOE-A-2015-7391
- Art. 778 quáter LEC. Governs the return of a child wrongfully removed or retained where an international convention or European Union law applies: jurisdiction lies with the court of the provincial capital with family jurisdiction where the child is, a lawyer and procurador are compulsory, the case is urgent and takes priority with an unavoidable total period of six weeks across both instances, staying it for parallel criminal proceedings is prohibited, and interim measures may be ordered under article 773 and article 158 of the Código Civil. BOE-A-2000-323
- Art. 778 sexies LEC. Allows any interested person to obtain in Spain, outside the return proceedings, a decision declaring the removal or retention of a child habitually resident here to be wrongful, and designates as the authority competent to issue the decision or certificate of article 15 of the 1980 Hague Convention the last judicial authority in Spain to have heard parental responsibility proceedings and, failing that, the court of the child's last domicile in Spain. BOE-A-2000-323
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
She has custody. Does she not decide alone where the child lives?
No. Custody divides who lives with the child, not who decides. Article 156 of the Código Civil provides that parental responsibility is exercised jointly by both parents, or by one with the other's express or tacit consent, saving only acts in accordance with social usage or of urgent necessity. Moving country falls outside those exceptions, and absent agreement the court must resolve it.
Can I stop a passport being issued for the child?
Yes. Article 158 of the Código Civil expressly includes, among the measures to prevent child abduction, a ban on issuing the child's passport or its withdrawal if already issued, together with a ban on leaving the national territory without prior judicial authorisation. They may be adopted in any civil or criminal proceedings or in a jurisdicción voluntaria case.
He has already taken the child abroad. How long does return take?
Article 778 quáter of the Ley de Enjuiciamiento Civil declares the proceedings urgent and priority and sets an unavoidable total period of six weeks across both instances from the filing of the application, save in exceptional circumstances making that impossible. It also prohibits staying the civil proceedings because of criminal proceedings for child abduction.
Does it matter if the child says he does not want to go?
Yes, and with a specific threshold. Article 156 requires the court to hear the child if mature enough and, in all cases, if over twelve, before giving the power to decide to one parent. Article 85 of Ley 15/2015 requires the child to be summoned to the hearing in those same situations. His view is heard and weighed, without being decisive on its own.
Is an article 156 disagreement the same as modifying measures?
No, and choosing wrongly costs time. The article 156 case resolves one specific decision and follows articles 85 and 86 of Ley 15/2015 before the court of the child's domicile or the one that established joint exercise. Modifying measures redoes the whole arrangement, with stays, travel costs and the school calendar, and is what fits when the move becomes settled.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.