Reglas de competencia judicial internacional en materia de responsabilidad parental: análisis del foro de la “residencia habitual del menor” y estudio de la «competencia residual»

Abstract

The free movement of citizens in Europe has encouraged the creation of "international" families, in which parents have different nationalities or live in a country other than the country of which they are nationals. When family disputes arise, particularly with regard to children, this may raise doubts about the country in which the case should be judged. The situation is even more complicated when dealing with citizens who come from third countries and in cases where the children reside in these third countries and measures are requested in respect of the same by the parents residing in a Member State. Regulation (EC) 2201/2003 covers the jurisdiction in litigation of parental responsibility, that is to say, the determination of the jurisdictional bodies of the Member State in question that must be informed of the case, as well as the recognition and execution of the possible judicial resolutions in The EU. In matters of parental responsibility, the general criterion of competence is the habitual residence of the minor at the moment in which the matter is presented before the judicial body, a criterion that is not exempt from difficulties of concretion and whose evolution in the treatment of the jurisprudence of the CJEU is object of this study. On the other hand, there are also exceptions or different and subsidiary criteria of habitual residence, as is established by art. 14 in the aforementioned European standard. This "residual" forum will be activated when no court of a Member State is competent according to the general and special rules in place of parental responsibility and will be informed of the matter, those courts established in domestic laws, that is, a residual to national rights.