"A parent loses the parental authority for breach of parental obligations"
This article makes a brief analysis of the Judgment issued by the Provincial Court of Santander, dated May 16, 2017, that agreed to estimate the appeal filed by the minor's mother and agreed to deprive the father of parental rights on the youngest child. I do this analysis through some simple questions that allow the reader to understand as simple as possible.
I. May one of the parents be deprived of parental rights?
Article 170 of the Spanish Civil Code provides that "The father or mother may be totally or partially deprived of their power by a judgment based on the breach of the duties inherent to it or rendered in criminal or matrimonial proceedings.
The courts may, for the benefit or interest of the child, agree to recover the parental authority when the cause that caused the deprivation has ceased".
Article 9 of the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, ratified by Spain on 30 November 1990 and in force in our country since 5 January 1991, establish that States Parties shall ensure that the child is not separated from his parents against their will, except when such separation is necessary in the best interest of the child.
With this, our legal system foresees the possibility of depriving one of the parents of parental rights for breach of the inherent duties (Care and protect their interests, to have them in their company, to feed them, to educate them and to provide them with an integral formation, to represent them and manage their assets, etc.).
The content of the rule oblige to examine each specific case and the circumstances of the case to adopt such a pernicious decision and such dishonor.
The Supreme Court, in its judgment of January 13, 2017, recognized it (and also Judgment of the Supreme Court of 10 February 2012, judgments of 9 November 2015; 18 October and 6 July 1996) demanding that the breaches be serious and repeated, and beneficial to the child; and examine each specific case. Require also that the court have a wide discretionary power of assessment but the interests of the child be always kept in mind.
II. What are the reasons why the deprivation of parental authority can be adopted?
As noted, Article 170 of the Spanish Civil Code provides for the application of these measures in case of breach of the duties inherent to it. It will be necessary to examine each specific case by weighing the circumstances. The court will have a discretionary margin of appreciation always taking into account the interest of the child.
Therefore, each specific case must be weighed in order to be able to adopt this measure.
Deprivation requires that the parents do not perform such duties in a serious and repeated manner and that it is beneficial for the child, because the power is an inexcusable function that is always exercised for the benefit of the children to facilitate the full development of their personality.
For example, the Supreme Court, in its judgment of January 13, 2017, remembered other sentences that confirmed decisions of deprivation of parental authority because the father had only paid some monthly pension payments and the mother had claimed them; when the father gave his daughter to the administration for not being able to attend; or in assumptions of attempted murder of the wife. It is not necessary that the aggression or breach of duties has as direct passive subject to the child, but that also can be inferred from the aggression to the mother or a sister.
III. In the present case, what were the reasons why the deprivation of parental authority was agreed?
In essence, the facts that motivated the decision were the following.
The parents divorced, when the child was 16 months old and he did not see his father since the age of two. Therefore, the Provincial Court agreed to deprive the parental authority of a father who in the last eight years has not maintained contact with his son, eleven years at present. Nor was the parent punctually and voluntarily paying the maintenance allowance that was fixed in the divorce process. For that reason, he was criminally convicted as the perpetrator of a family abandonment crime.
These circumstances were enough for the Provincial Court of Santander concluded that the circumstances were given to modify the measures agreed in a sentence that granted parental authority to both parents. The absolute personal inattention that implies the lack of treatment between a father and his son during his early childhood and the patrimonial neglect, only corrected by means of the executive route, objectively reveal a serious breach of the duties inherent to parental authority. Initially, the Court of First Instance had dismissed the petition.
IV. Once the measure is adopted, can the parent recover the parental authority?
The second paragraph of article 170 of the Civil Code provides that "The courts may, for the benefit or interest of the child, agree to recover the parental authority when the cause that caused the deprivation has ceased."
The judgment of the Supreme Court, dated February 10, 2012, stated that the restrictive nature in the application and interpretation of Article 170 of the Civil Code.
In conclusion, If the cause that led to the deprivation of parental authority ceases, the court may decide to reinstate it. Although, I must reiterate it must to examine the circumstances of each case will have to be taken into account, taking into account the interest of the child; the complexity that can arise when a court has agreed to apply a measure so severe and unworthy. In addition, it will be necessary to take into account the content of the sentence that agreed to this measure to try to glimpse the meaning and scope of it, when trying to restore parental authority.
I. May one of the parents be deprived of parental rights?
Article 170 of the Spanish Civil Code provides that "The father or mother may be totally or partially deprived of their power by a judgment based on the breach of the duties inherent to it or rendered in criminal or matrimonial proceedings.
The courts may, for the benefit or interest of the child, agree to recover the parental authority when the cause that caused the deprivation has ceased".
Article 9 of the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, ratified by Spain on 30 November 1990 and in force in our country since 5 January 1991, establish that States Parties shall ensure that the child is not separated from his parents against their will, except when such separation is necessary in the best interest of the child.
With this, our legal system foresees the possibility of depriving one of the parents of parental rights for breach of the inherent duties (Care and protect their interests, to have them in their company, to feed them, to educate them and to provide them with an integral formation, to represent them and manage their assets, etc.).
The content of the rule oblige to examine each specific case and the circumstances of the case to adopt such a pernicious decision and such dishonor.
The Supreme Court, in its judgment of January 13, 2017, recognized it (and also Judgment of the Supreme Court of 10 February 2012, judgments of 9 November 2015; 18 October and 6 July 1996) demanding that the breaches be serious and repeated, and beneficial to the child; and examine each specific case. Require also that the court have a wide discretionary power of assessment but the interests of the child be always kept in mind.
II. What are the reasons why the deprivation of parental authority can be adopted?
As noted, Article 170 of the Spanish Civil Code provides for the application of these measures in case of breach of the duties inherent to it. It will be necessary to examine each specific case by weighing the circumstances. The court will have a discretionary margin of appreciation always taking into account the interest of the child.
Therefore, each specific case must be weighed in order to be able to adopt this measure.
Deprivation requires that the parents do not perform such duties in a serious and repeated manner and that it is beneficial for the child, because the power is an inexcusable function that is always exercised for the benefit of the children to facilitate the full development of their personality.
For example, the Supreme Court, in its judgment of January 13, 2017, remembered other sentences that confirmed decisions of deprivation of parental authority because the father had only paid some monthly pension payments and the mother had claimed them; when the father gave his daughter to the administration for not being able to attend; or in assumptions of attempted murder of the wife. It is not necessary that the aggression or breach of duties has as direct passive subject to the child, but that also can be inferred from the aggression to the mother or a sister.
III. In the present case, what were the reasons why the deprivation of parental authority was agreed?
In essence, the facts that motivated the decision were the following.
The parents divorced, when the child was 16 months old and he did not see his father since the age of two. Therefore, the Provincial Court agreed to deprive the parental authority of a father who in the last eight years has not maintained contact with his son, eleven years at present. Nor was the parent punctually and voluntarily paying the maintenance allowance that was fixed in the divorce process. For that reason, he was criminally convicted as the perpetrator of a family abandonment crime.
These circumstances were enough for the Provincial Court of Santander concluded that the circumstances were given to modify the measures agreed in a sentence that granted parental authority to both parents. The absolute personal inattention that implies the lack of treatment between a father and his son during his early childhood and the patrimonial neglect, only corrected by means of the executive route, objectively reveal a serious breach of the duties inherent to parental authority. Initially, the Court of First Instance had dismissed the petition.
IV. Once the measure is adopted, can the parent recover the parental authority?
The second paragraph of article 170 of the Civil Code provides that "The courts may, for the benefit or interest of the child, agree to recover the parental authority when the cause that caused the deprivation has ceased."
The judgment of the Supreme Court, dated February 10, 2012, stated that the restrictive nature in the application and interpretation of Article 170 of the Civil Code.
In conclusion, If the cause that led to the deprivation of parental authority ceases, the court may decide to reinstate it. Although, I must reiterate it must to examine the circumstances of each case will have to be taken into account, taking into account the interest of the child; the complexity that can arise when a court has agreed to apply a measure so severe and unworthy. In addition, it will be necessary to take into account the content of the sentence that agreed to this measure to try to glimpse the meaning and scope of it, when trying to restore parental authority.
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We can communicate in Spanish and English language.
If you need to speak in another language, please send me a mail with your request using the contact form indicating the type of consultation, language and if you need to meet in person or by telephone, Skype or Hangout.
The contacts and the provision of services are done mainly by internet through email, Skype or Hangout. If you need to contact by phone or meet in person, I will be happy to assist you, by appointment. The following services are offered:
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