A foreign mother with limited means, legally resident for less than a year, faced a claim seeking to suspend her custody of her son. This is a real case of urgent custody measures, defended pro bono, and dismissed in full by the court.
A Particularly Sensitive Situation
Our client was a foreign mother with limited means, legally resident in Spain for less than a year, a residence permit that the MigratioLex team had itself obtained for her.
Her former partner applied for urgent measures aimed at suspending custody of their minor son, directly against our client’s interests.
The Legal Basis for Urgent Custody Measures
The proceedings were brought under article 158 of the Spanish Civil Code, which allows exceptional measures in the child’s interest: provisional suspension of custody, a ban on leaving the country, or limits on contact with a parent.
Article 236-5 of the Civil Code of Catalonia was also invoked, which allows contact arrangements to be suspended when they may harm the child.
The claimant based his request on serious accusations without sufficient evidence to justify such a drastic measure.
This type of urgent custody measure requires a high standard of proof precisely because its effect is immediate and can change the child’s daily life overnight.
What Happened at the Hearing: Evidence Versus Accusations
At the hearing, the claimant made particularly serious accusations, including alleged substance use and neglect of the child, without providing any evidence to support them.
Our strategy focused on exposing that lack of evidence and refocusing the debate on what really matters: the child’s wellbeing.
- Testimony from the director of the child’s nursery, an external and impartial witness.
- Confirmation that the child arrived in good health and well cared for.
- Evidence of a positive relationship with both parents.
Facing a similar claim? A well-built defence makes the difference at this kind of hearing.
Book Your Consultation →The Court’s Decision
The judge concluded that there were no sufficient reasons to change the existing shared custody arrangement and dismissed the claim in full.
The court also made a key point: any change to the agreed measures must be requested through the ordinary modification procedure, not through this exceptional route reserved for situations of real urgency.
This urgent custody measures case confirms that a well-documented defence can completely neutralise a claim based on unsupported accusations.
Urgent Measures or Modification of Measures: Not the Same Thing
Urgent measures (art. 158 CC)
PurposeRemove the child from danger or prevent harm EffectImmediate and provisional RequiresA real, proven urgencyModification of measures
PurposeChange custody, visits or maintenance already agreed EffectAfter ordinary proceedings RequiresA substantial change in circumstancesIn this case the court made it clear: the urgent route cannot be used to reopen custody when there is no real risk to the child.
Why This Process Is Harder Than It Looks
- Using the urgent route without a real urgency. Article 158 is not designed for ordinary disputes between parents.
- Making accusations without evidence. Serious allegations without proof weaken the claim instead of strengthening it.
- Underestimating the value of an impartial witness. External, neutral testimony, such as from a school, can be decisive.
- Not understanding the difference between urgent measures and ordinary modification. Confusing the two routes can cost time and credibility before the court.
Talk to a Lawyer Before You Present Your Case
Using child protection procedures as a weapon in disputes between adults not only distorts their purpose, it can also harm the very person they are meant to protect. If you are facing a claim for urgent custody measures, at MigratioLex we review your specific case, not a generic checklist. We respond within 24 hours, in English, French or Spanish.
Book Your Initial ConsultationThis article is for informational purposes only and does not constitute legal advice. Based on article 158 of the Spanish Civil Code and article 236-5 of the Civil Code of Catalonia.
