Child Custody

Relocating abroad with a child

A parent which have a child residence order may decide to leave Portugal and permanently relocate abroad.

It may happen that both parents agree about the move, namely because they recognize that may be the best for their children, and in those cases nothing will hinder to the move to another country. But there will be cases where one of the parents doesn’t consent to the move of the child to a foreign country. What to do in those cases?

Parental responsibility and the decision to move abroad

Parental responsibility in Portugal is usually exercised by both parents. This means that issues of the significant matter regarding children’s lives are decided by agreement of both parents. These include, of course, the decision regarding the child’s place of residence, especially when a decision is made to move abroad.

In principle, those decisions should be taken with the consent of both parents. In case of disagreement, it will be up to the court to decide, if one of the parents apply for such an order.

When one of the parents intends to migrate to a foreign country, and take the child with him, both parents need to agree on the child’s move. If there’s a disagreement, the parent that intends to migrate needs to raise the issue with the Court-of-law, which will grant (or not) the relocation order.

What are the criteria that will guide the court decision regarding an order applied for by one of the parents for the purpose of moving with a child to a foreign country?

Criteria used in the court’s decision about relocation abroad with a child

If one of the parents appeals to the Court for the purpose of obtaining an order that allows him to change the children’s place of residence to a foreign country, the judge will decide in the light of what is considered to be the child’s best interests, criteria in decisions affecting children or young people.

The decision should, of course, take in consideration the reasons that justify the project to move abroad, and the possible consequences, positive and negative, in family dynamics, especially in the child’s relationship with the parent who will not relocate. It will also be necessary to consider the possible impacts of the child’s distancing from his/her remaining family, school, friends, etc.

If the Court decides to grant the order to move abroad, it should, of course, guarantee that the parent who remains in Portugal (and the rest of the family) maintains contact with the child. If personal contacts will necessarily be more widely spaced, there is nothing to prevent regular or even daily contacts by video conference using new technologies (Skype, WhatsApp, etc.).

The order should take in consideration holiday periods in Portugal and establish the responsibility for paying for the child’s travels to and from Portugal on holiday.

Child abduction

In case of disagreement of the parents about a move abroad, or even where the court doesn’t grant the order, the concerned parent may be tempted to take the child abroad without the consent from the other parent and/or a Court’s order.

By doing so, the parent may incur the crime of subtraction of minors punished by art. 249º of the Penal Code, which corresponds to a prison sentence of up to two years in prison or a fine of up to 240 days.

It should also be noted that Portugal is a signatory party to the Convention on the Civil Aspects of International Child Abduction (Hague 25.10.1980), which ensures swift procedures for the repatriation of children illegally taken abroad.

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