Family Rights & Duties — Criminal Defence Lawyers

The offences against family relationships protect the family institution and the duties of assistance and care arising from kinship, marriage and cohabitation. Regulated in Articles 217 to 233 of the Criminal Code (CP), they cover a broad catalogue of conduct: from illegal marriages to family abandonment, child abduction and the non-payment of maintenance. These offences reflect the criminal-law protection of family solidarity as a fundamental value of the legal order.

Family Abandonment (Art. 226 CP)

Family abandonment punishes those who fail to perform the legal duties of assistance inherent in parental authority, guardianship, custody or foster care, or who do not provide the legally established support for their descendants, ascendants or spouse. The penalty is a fine of 6 to 24 months. The duties include food, clothing, education, medical care and supervision appropriate to the age of the minor.

Non-Payment of Maintenance (Art. 227 CP)

Failure to pay the financial payments set in a court order (settlement agreement, separation or divorce judgment) for two consecutive or four non-consecutive months is an offence carrying prison of 3 months to 1 year or a fine of 6 to 24 months. The payments include the maintenance allowance, the compensatory allowance, agreed extraordinary expenses and any other family financial obligation set by the court. The default must be wilful: proven, non-sought financial inability excludes criminal liability.

Child Abduction (Art. 225 bis CP)

Child abduction by a parent punishes the removal or retention of a minor in breach of the court order establishing custody. The penalty is prison of 2 to 4 years and special disqualification from the exercise of parental authority for 4 to 10 years. Where the minor is moved outside Spain, the penalties are aggravated and the mechanisms of the Hague Convention on international child abduction are triggered.

Gender Violence & Family Offences

Offences against family relationships frequently concur with gender violence (Arts. 153, 171.4, 173.2 CP). The non-payment of maintenance may amount to a form of economic violence; child abduction may be used as an instrument of control over the former partner; and habitual abuse may include the deliberate breach of family obligations as a form of harassment. Jurisdiction is then attributed to the Court on Violence against Women.

International Child Abduction

Where a parent moves the minor to another country without judicial authorisation or the consent of the other parent, the 1980 Hague Convention is triggered. This international instrument obliges the receiving country to return the minor to the country of habitual residence within a maximum period of six weeks, save where the limited exceptions apply (grave risk to the minor, settlement in the new environment). Within the EU, the Brussels II ter Regulation reinforces these mechanisms of immediate return.

Protection of the Minor

In all family offences, the best interest of the child is the guiding principle. The criminal courts may adopt protective measures: suspension of parental authority, supervised visiting arrangements, a prohibition on leaving the territory (retention of the minor's passport), and notification to the Public Prosecutor and the regional child-protection service. The minor may be heard in the proceedings from the age of 12, and younger where they have sufficient maturity.

Defence Strategies

The defence is built according to the specific offence: in non-payment, proving genuine, non-sought insolvency (loss of employment, disabling illness); in abduction, showing a grave risk to the minor (abuse by the other parent) that justified the urgent action; in abandonment, showing that the assistance duties were met by alternative means; and, in every case, questioning the proportionality of the criminal route against the civil family route as a means of resolving the conflict. We act before the Investigating Courts, the Courts on Violence against Women, the Criminal Courts and the Provincial Courts.

Procedural stages and the competent court for each offence

Family-related offences follow the ordinary abbreviated procedure, reserved for crimes whose maximum penalty does not exceed five years. The investigation opens before the Juzgado de Instrucción of the place where the events occurred, which conducts the inquiry, takes statements from the accused and the injured parties, and rules on precautionary measures. Once the investigation closes and the oral trial is ordered, the case is tried by the Juzgado de lo Penal, which delivers judgment after the hearing. An appeal lies to the Provincial Court, ensuring a full second review of both the facts and the law applied to them.

The rule changes when the conduct falls within gender-based violence. In those cases the investigation does not belong to the ordinary Juzgado de Instrucción but to the Juzgado de Violencia sobre la Mujer, a specialised court that concentrates the criminal inquiry and, where appropriate, the civil measures arising from the separation. Trial still falls to the Juzgado de lo Penal where the penalty stays within the five-year limit. Neither the Audiencia Nacional nor any privileged-forum body intervenes here: this is proximity crime, assigned to the ordinary territorial criminal jurisdiction.

Evidence by offence: documents, psychological reports and custody papers

Each family offence calls for a different evidential foundation. In the non-payment of maintenance under Article 227 the proof is essentially documentary and arithmetical: the court ruling or judicially approved agreement that sets the payment, the bank records or their absence, and the count of the two consecutive or four non-consecutive months the offence requires. The obligor's real financial capacity is the central question for the defence, because the non-payment must be wilful; establishing a supervening, objective inability to pay, as opposed to mere resistance, can negate intent and with it criminal liability.

In the habitual abuse of Article 173.2 the psychological expert report carries decisive weight, since what is assessed is a sustained climate of domination over time rather than an isolated episode, looking at the number of proven acts and their temporal proximity. In the abduction of minors under Article 225 bis the evidential axis is the custody documentation: the ruling that allocates the arrangement, the fixing of the habitual residence, and proof of the removal or retention without the other parent's consent. The chain of custody for messages, medical reports and witness testimony completes the picture in every case.

The line with civil family courts and with neighbouring offences

Not every family conflict is a crime. The civil family jurisdiction resolves the modification of measures, enforcement of maintenance through civil compulsion, and disputes over visitation, while the criminal route is triggered only when the conduct fully matches a specific offence: the qualified non-payment of Article 227, the serious breach of custody of Article 225 bis, or the violence of Article 173.2 or 153. A one-off delay in payment, a disagreement over the visitation schedule, or tension typical of a separation belong to the civil sphere and should not be turned into a criminal matter.

It is also essential to separate neighbouring offences. The abandonment of family of Article 226 punishes the breach of the duties of assistance inherent in parental authority or the provision of means of subsistence, and differs from the purely economic non-payment of Article 227. The occasional abuse of Article 153 punishes an isolated assault, as against the habituality of Article 173.2, which may be appreciated whether or not the earlier acts were previously prosecuted. Threats, coercion or injuries may run alongside or be absorbed depending on the dynamics of the events, and their correct classification shapes the penalty.

Protection order, breach, prescription and ways to close the case

In offences with a vulnerable victim, Article 544 ter of the Criminal Procedure Act allows a protection order that gathers, in a single decision, the criminal measures of restraint and a ban on communication together with urgent civil measures on custody, housing or maintenance. Once in force, breaching it constitutes the offence of breach of order under Article 468.2, and a firm rule applies here: the victim's consent neither excludes the offence nor mitigates the penalty, in line with the settled doctrine of the Criminal Chamber. The measure protects an interest that is not at the disposal of the protected person, so resuming contact despite the ban does not erase the unlawfulness of the conduct.

Prescription of these offences follows Article 131 of the Criminal Code: because the maximum penalty does not exceed five years, the limitation period is five years, with no three-year band in its wording. The defence also has reasonable ways to close the case. In non-payment, reparation of the harm always involves paying the sums owed, which may operate as a mitigating factor and open the door to a guilty-plea agreement. A conformidad, negotiated with the prosecution, allows the penalty to be adjusted within the law and ends the proceedings early. Vicarious violence, finally, is a concept describing the instrumental harm inflicted through the children to wound the other parent, not an autonomous offence: it is prosecuted through the existing figures, according to the facts.