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Parental authority is the set of rights and duties that parents have over their minor or non-emancipated children, in order to protect their well-being and comprehensive development. Among the responsibilities that parental authority encompasses are custody, education, administration of the child’s assets, legal representation, among others.

In Spain, the deprivation of parental authority from a parent is a measure that can be adopted in exceptional and serious cases, when it is considered that the person is not properly fulfilling their obligations as a father or mother. This measure can be requested by the other parent, the Public Prosecutor’s Office, or initiated by a judge, and must be based on situations such as abuse, neglect, failure to fulfill parental duties, among other reasons that endanger the welfare of the child.

The deprivation of parental authority implies the loss of the rights and responsibilities that parents have over their children, and it can be total or partial, depending on the severity of the situation. This measure is taken with the aim of protecting the child and ensuring their well-being, so each case must be carefully evaluated before making a final decision.

For example, in a recent case, the Supreme Court in the STS 433/2024 – ECLI:ES:TS:2024:433, considered depriving a parent of parental authority over their descendant.

The procedure began with a lawsuit filed by the mother where she requested “the total deprivation of parental authority from Abel, regarding the minor, Agustín, and the exclusive grant of parental authority to the mother of the child, all with a specific condemnation in costs to the defendant.”

In this procedure, the Public Prosecutor’s Office responded to the lawsuit, however, the defendant parent did not even appear, so they were considered to be in default, and the procedure continued.

In the First Instance, the lawsuit was partially upheld, granting exclusive custody to the plaintiff mother. Likewise, the exercise of parental authority was established exclusively for the plaintiff. Although its ownership remained shared.

In the Second Instance, the appealed sentence was confirmed. Faced with this circumstance, the plaintiff mother proceeded to appeal the appeal sentence to the Supreme Court through the corresponding appeal.

The appeal was based primarily on the infringement of articles 154 and 170 of the Civil Code.

Article 154 establishes that: “Unemancipated children are under the parental authority of the parents. Parental authority, as parental responsibility, shall always be exercised in the best interest of the children, according to their personality, and with respect to their rights, physical and mental integrity. This function includes the duties and powers to care for them, have them in their company, feed them, educate them, and provide them with comprehensive training. Represent them and administer their assets. Decide on the habitual residence of the minor, which can only be changed with the consent of both parents or, failing that, by court authorization. If the children are mature enough, they must always be heard before decisions affecting them are made, whether in a contentious or mutual agreement procedure. In any case, it will be ensured that they can be heard under suitable conditions, in terms that are accessible, understandable, and adapted to their age, maturity, and circumstances, seeking the assistance of specialists when necessary. Parents may, in the exercise of their function, request the authority’s assistance.”

On the other hand, Article 170 states: “Any of the parents may be totally or partially deprived of their authority by a court order based on the breach of the duties inherent to it, or dictated in criminal or matrimonial cause. The Courts may, for the benefit and interest of the child, order the recovery of parental authority when the cause that led to the deprivation has ceased.”

Therefore, the Supreme Court, in its legal reasoning, proceeds to revoke the appealed decision, arguing that: “The court does not share the criterion upheld by the lower court judgments, which create a situation of uncertainty and insecurity about the cases in which the mother (or the third parties related to her) should hear from the father to know his opinion on decisions that affect the child, which would not benefit him in any way. Allowing in this open and diffuse way for the father, who has been completely absent from the child’s life since birth (which took place on DATE, when the child is already ten years old), would not be in the child’s best interest. Permitting an absent father, who has shown no concern or interest, to interfere in decisions regarding the child, when he is not aware of his personal, material, and emotional needs, his personality, or any of his circumstances, does not benefit the child. The same lack of appearance of the father in this proceeding, despite the attempts at personal notification, confirms not only his lack of concern, but also the complexity that the solution adopted by the appealed sentence would bring, to the detriment of the child when a decision that requires hearing from consulting the father would be necessary, especially if it is not “of ordinary life” but of “extraordinary or special importance.” The court considers that, in this case, the benefit and interest of the child justifies the total deprivation of parental authority requested. Indeed, it is not clear how protecting the child’s interest can advise maintaining parental authority in favor of someone who has had no relationship with him since birth, has not taken care of his upbringing and maintenance, has not been concerned about his situation, and has not ensured his protection and care at any time. Maintaining parental authority despite acknowledging the complete absence of the father in the child’s life since birth and his abandonment of his responsibilities, even with minimal content that allows interference in the exclusive exercise of parental authority by the mother, does not benefit the child. Deprivation does not imply the termination of the parent-child relationship, and the defendant parent continues to have the legal duty to care for his child and provide for him, a duty of filiation and not parental authority (articles 39 CE and 110 Civil Code). Deprivation does not prevent, as we have said, that at the request of the interested father, parental authority can be recovered if, due to a change in attitude, he is willing to fulfill the duties inherent to parental authority, and this would be beneficial for the child given the circumstances. As a result of the above, we accept the appeal, uphold the lawsuit filed by Benita, and order the total deprivation of Abel’s parental authority regarding the minor Agustín.”

Therefore, the action of the mother is ultimately upheld. This does not prevent the possibility that in the future, if it is more beneficial for the child, parental authority can be reinstated to the parent, even through a new judicial procedure.

At Roji Abogados, we have years of experience in the practice and advice of family law. We understand the complexity of these cases and work to ensure the well-being of families and affected minors. If you need legal advice on this matter, do not hesitate to contact this law firm. Your trust is our priority. You can reach us through the following means:

1.- info@rojiabogados.com

2.- 952 211 011 and 607 202 361

3.- Send a message to Roji Abogados on WhatsApp. https://wa.me/34607202361

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