Moving/settling abroad with children

1 Under what circumstances may a parent lawfully remove the child to another state without the other parent’s consent?

When it comes to the circumstances under which a parent may lawfully remove a child to another state without the other parent’s consent, the following situations must be distinguished:

(a) when the parent with whom the child lives wishes to remove the child lawfully to another state, and

(b) when the parent with whom the child does not live, but with whom the child maintains a personal relationship, wishes to remove the child lawfully to another state.

(a) The parent with whom the child lives after the divorce may, as part of their day-to-day care of the child, lawfully remove the child to another state (e.g. on a day trip), provided that this does not jeopardise the other parent’s right to maintain a personal relationship with the child, as provided for in Articles 95 and 119 of the Family Act (Obiteljski zakon) (Narodne Novine (NN; Official Gazette of the Republic of Croatia) Nos 103/15 and 98/19, 47/20, 49/23 – Decision of the Constitutional Court of the Republic of Croatia (Ustavni sud Republike Hrvatske), and 156/2023). Regardless of whether the parents exercise joint or sole parental care, each of them has the right to make day-to-day decisions regarding the child independently when the child is staying with them (Article 110 of the Family Act). If, after the divorce, the parents exercise joint parental care (Article 104 of the Family Act), decisions that are significant for the child must be taken consensually (Article 108 of the Family Act). Since the purpose of going to another state temporarily (e.g. on a day trip) is not to change the child’s permanent or temporary residence, it is not included on the exhaustive list of essential personal rights of the child under Article 100 of the Family Act, and the provisions of Article 99(2) of the Family Act should therefore be applied accordingly. The same would apply where the parent with whom the child lives after the divorce exercises sole parental care in part (Article 105 of the Family Act). However, if the parent with whom the child lives after the divorce exercises sole parental care in full on the basis of a court order, that parent will not require the other parent’s consent in order to go with the child to another state temporarily (Article 105(5) of the Family Act).

(b) If the parent with whom the child does not live after the divorce, but with whom the child maintains a personal relationship, decides to remove the child lawfully to another state, that parent may do so provided that they are going to the other state temporarily (e.g. on a day trip) during the time when that parent is exercising their right of access to the child (Article 121 of the Family Act), and that this right has not been prohibited or restricted by a court order (Articles 123–126 of the Family Act). Regardless of whether the parents exercise joint or sole parental care, each of them has the right to make day-to-day decisions regarding the child independently when the child is staying with them (Article 110 of the Family Act). If, after the divorce, the parents exercise joint parental care (Article 104 of the Family Act), decisions that are significant for the child must be taken consensually (Article 108 of the Family Act). Since the purpose of going to another state temporarily (e.g. on a day trip) during the time when the parent is exercising their right of access to the child is not to change the child’s permanent or temporary residence, it is not included on the exhaustive list of essential personal rights of the child under Article 100 of the Family Act, and the provisions of Article 99(2) of the Family Act should therefore be applied accordingly. The same would apply where the parent with whom the child lives after the divorce exercises sole parental care in part (Article 105 of the Family Act), since the parent maintaining a direct personal relationship with the child has the freedom and the right to represent the child in day-to-day matters for the duration of the child’s stay with them (in accordance with Articles 110 and 112 in conjunction with Article 105(1) of the Family Act).

In these situations, the importance of the provision of Article 111 of the Family Act should be emphasised, since both parents, regardless of whether they exercise joint or sole parental care, are obliged to exchange information on the child, which includes information on going abroad with the child. Not only is this a legal obligation for the parents, but personal and other documents are required to cross a state border, which the child, or the accompanying parent, must have on them.

If one parent believes that the other parent could take advantage of going abroad with the child temporarily, that parent is permitted to request, in non-contentious proceedings, that the court impose one of the measures referred to in Article 418 of the Family Act, ensuring that the order on maintaining a personal relationship between the parent and the child is enforced, or that the court impose one of the measures referred to in Article 419 of the Family Act, ensuring the safe return of the child.

The most desirable solution is that the parents reach an agreement on these and similar matters, which they may then regulate in a joint parental care plan (Article 106(3) of the Family Act).

2 Under what circumstances is the other parent’s consent necessary for the child’s removal to another state?

Any (permanent) removal of the child to another state with a view to changing the child’s permanent or temporary residence requires both parents’ consent. Regardless of whether the parents exercise joint parental care or one of them exercises sole parental care in part, the parent who wishes to change the child’s permanent or temporary residence by removing the child to another state must obtain the other parent’s written consent (Articles 100 and 108 of the Family Act). However, if one of the parents exercises sole parental care in full, there is a possibility that that parent will not require the other parent’s consent to remove the child to another state with a view to changing the child’s permanent or temporary residence (Article 105(5) of the Family Act).

3 If the other parent does not consent to the child’s removal to another state, though it is necessary, how can the child be removed lawfully to another state?

If the parent wishing to change the child’s permanent or temporary residence by removing the child to another state is unable to obtain the other parent’s written consent, the court will determine, in non-contentious proceedings, which of the parents will represent the child in this matter with a view to safeguarding the child’s best interests (Articles 100(5) and 478(1) of the Family Act). Prior to initiating these non-contentious proceedings, out-of-court mandatory counselling proceedings must take place, in which a team of experts from a social welfare centre try to help the parents reach an agreement on the matter (Article 481 of the Family Act – out-of-court mandatory counselling proceedings as a procedural requirement for initiating the proceedings referred to in Article 100(5) of the Family Act). If in the course of the mandatory counselling proceedings the parents are unable to reach an agreement, the matter will be decided on by a court of law in non-contentious proceedings, taking particular account of the child’s age and opinion; the child’s right to maintain a personal relationship with the other parent; the parents’ willingness and readiness to cooperate in the exercise of parental care; the parents’ personal circumstances; the distance between the parents’ places of permanent or temporary residence and the place where the child is supposed to move to, and transport links between those places; and the parents’ right to freedom of movement (Article 484 of the Family Act).

However, it should be emphasised that if one of the parents exercises sole parental care in full, that parent will not require the other parent’s consent in order to remove the child to another state with a view to changing the child’s temporary or permanent place of residence, i.e. in that case, opposition by the other parent is of no legal consequence (Article 105(5) of the Family Act).

4 Do the same rules apply to temporary removal (e.g. holiday, healthcare etc.) and permanent removal? If applicable, please provide relevant consent forms.

As stated in the answers to questions 1–3, the Family Act governs the rights and obligations of parents differently, depending on whether the child is being removed to another state temporarily (e.g. on a day trip which does not jeopardise the other parent’s rights) or the child is being removed to another state permanently, with a view to changing the child’s place of permanent or temporary residence.