How to remove parental authority from a parent in Spain

There are situations where, following a separation or divorce, one of the parents of an unemancipated child fails to fulfil his or her legal obligations. In this case, the other parent can request that a judge withdraw parental authority so that he or she can exercise it exclusively. Here we would like to tell you how this procedure is carried out and whether there is a real chance of success.

But what is parental authority?

Before fully answering the question of how to remove parental authority from a parent in Spain, we must clarify this concept.

Specifically, parental authority is the set of rights and duties that parents have over their minor children who are not emancipated. Thanks to it, they have the right to decide on their education, health and care, as well as to manage their property. Likewise, they are obliged to take care of them, protect them and educate them, watching over their well-being and integral development.

Although confusion is common, the concepts of ‘parental authority’ and ‘guardianship and custody’ should not be confused, as the latter only refers to the person who has the minor in their daily care.

To understand this better, it is sufficient to give the example of divorced parents. The mother may have custody of the child, but both she and her ex-partner will retain parental authority until the child is emancipated or reaches the age of majority.

Can parental rights be withdrawn from a parent?

The answer is yes. In fact, article 170 of the Civil Code states this, although for this to happen, there must be a final court ruling to do so.

In order to remove parental authority from a parent for abandonment, it is necessary to prove to the judge that one of the parents has failed to comply in a ‘constant, serious and dangerous’ way with the duties inherent to parental authority. However, if the facts are not serious enough, it is possible to limit or temporarily deprive the exercise of parental authority. Similarly, if the reasons that led to the deprivation of parental authority disappear, the parent may regain parental authority.

How to apply for exclusive parental responsibility?

Requesting exclusive parental responsibility for an unemancipated minor is synonymous with withdrawing it from the other parent, as it is a right and a duty inherent to the condition of parent. As mentioned above, only a judge can do this, which is why it is mandatory to initiate a judicial process.

This judicial process must begin with the filing of an application with the relevant court, which must be drawn up by a lawyer specialising in family law. It must set out in detail all the evidence available to justify the parent's non-compliance.

This evidence may include medical and psychological reports, social services reports, witness statements or any other element that may be useful to assist the judge in making the decision. Once submitted, the judge will summon both parties to a hearing and assess whether there are sufficient grounds to terminate parental rights.

If the judge considers that there are sufficient grounds, he or she will proceed to transfer the parental rights to the mother or the father. Otherwise, the situation will continue as before.

How can parental rights be regained?

To regain parental rights over a child, the parent who lost parental rights in the past must file another lawsuit. He or she must prove that the reasons that led to the loss of parental authority in the past have disappeared and that he or she is therefore fully entitled to exercise parental authority again. As in the opposite case, it will be up to the judge to decide whether or not to return it.

Does the loss of parental responsibility have financial implications?

No. The parent who loses parental responsibility for his or her child continues to have the same financial obligations that he or she had previously. That is, he or she will still have to pay child support and any other financial expenses that are directly related to the welfare of the unemancipated child. This is all you need to know about how to remove parental authority from a parent in Spain. In order for us to help you with a personalised analysis of your case, please contact us. One of our lawyers specialising in family law will advise you on everything you need.