Q. My ex and I are originally from Massachusetts but moved to Spain for my job 12 years ago. We divorced two years ago in Spain. I have primary custody of our two children who are 12 and 14 which she agreed to after a court investigation determined my home to be more stable. She does spend significant time with them, especially in the summer when they travel to the U.S. to see her family.
I just learned she does not intend to come back to Spain at the end of her summer holiday with the children (they are due back in two weeks). A friend notified me she enrolled them in the local public school. I do not agree that they can stay in Massachusetts – their lives, their friends, their school and everything is all in Spain.
What is the quickest way to get the children back?
A. You have two options. First, you can get a certified copy of your Spanish divorce and custody judgment (with a certified English translation), register it in Massachusetts State Court and seek enforcement. This is generally pretty quick, and you do not have to wait for her failure to return the children before you can register the Spanish judgment.
She will have the right to object to registration but that is really hard to do. And she can then argue Massachusetts should not grant what we call comity to the Spanish judgment. Again, this will not be easy for her to do. Depending on what county she is in here, the turnaround time on this could be as quick as a month.
The other option is to file in Federal Court using the Hague Convention on Civil Aspects of International Child Abduction after she fails to return the children claiming that she is wrongfully retaining them here. The Hague cases generally move quickly as well. But she has different defense options here like claiming that there is a grave risk of harm to your children if they are returned or that they object to being returned. If she says they object, given their ages, they will be given an opportunity to express their objections and the court will make a determination as to whether they are old enough and of sufficient maturity to honor their requests.
Prioritize getting a certified copy of the judgment while you think over your path as both courts need this document at the outset.
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