Case No. 106/2010
Family Appeals Court of Montevideo
April 14, 2010
Article 3: Best interests of the child
Article 9: Separation from parents
Other International Provisions:
Hague Convention on the Civil Aspects of International Child Abduction
Inter-American Convention on Alimony
Law No. 16.137
A couple divorced and the mother was granted principal custody of their son. The mother later remarried and wished to move to Spain with her new husband and the child, then ten years old. The father objected to these plans, and as a result, the mother did not allow him to visit the child. The father then sought a court order to stop the mother from taking the child abroad. During the proceedings, the child expressed that he wished to stay in Uruguay as he had no other family or friends in Spain, and the Family Court agreed that he should remain in Uruguay.
Issue and resolution:
International custody. The Tribunal upheld the order preventing the mother from taking the child to Spain, noting that it would be in the best interests of the child for him to remain in Uruguay.
In line with both domestic law and the Convention on the Rights of the Child, the Court’s decision must be based on the best interests of the child. Here, the determination of the child’s best interests was based on various factors, including his expressed preference, the fact that he would have to adapt to living in a completely different country, the fact that visits with his father would be costly and difficult to arrange, and the fact that his mother had shown a willingness to separate him from his father without his consent. The Court also considered that children have the right to develop relationships with both of their parents, and that international treaties generally favor the child residing in his or her country of habitual residence.
Excerpts citing CRC and other relevant human rights instruments
as translated by CRIN:
The decision [being appealed] is very balanced, as it discusses the relevant evidence as well as the varied interests that must be taken into consideration in order to resolve this difficult case, in which the best interests of a ten-year-old child are at stake (see Articles 3 and 9 of the Convention on the Rights of the Child, codified in Law No. 16.137). In this sense, the case establishes that all measures taken regarding a child must be based on the best interests of the child. It is the State’s responsibility to ensure the child’s adequate protection and care when parents or other guardians are unable to do so. The child has a right to live with both his mother and his father, except in those circumstances where separation is necessary for the child’s best interests. The child also has the right to maintain contact with both parents should he be separated from one or both of them.
CRIN believes this decision is consistent with the CRC. As recognised by the Court, the best interests of the child must be a primary consideration in all proceedings that concern children under Article 3 of the Convention, including custody decisions. In reaching these decisions, as further noted by the Court, children’s right under Article 9 to be raised by and develop relationships with both of their parents as far as possible must also be considered.
Sentencia Tribunal Familia 1er Turno, No. 106/2010 (Uruguay)
Link to Full Judgment:
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