The minor’s right to be heard is a fundamental principle in custody and visitation proceedings, firmly embedded in both international and Spanish legal frameworks. It reflects the recognition that children are not merely passive subjects of protection, but individuals with their own rights, views, and evolving capacities. Instruments such as the UN Convention on the Rights of the Child (Article 12) and Spanish legislation require that minors who have sufficient maturity be given the opportunity to express their views in any judicial or administrative proceedings affecting them, with those views being given due weight according to their age and level of understanding.
In practice, this right is implemented through judicial mechanisms designed to protect the child’s best interests, such as hearings conducted by the judge, the intervention of specialised psychosocial teams, or the appointment of a guardian ad litem in complex cases. Importantly, the child’s right to be heard does not equate to a right to decide; rather, it serves as a key evidentiary element that informs the court’s assessment of custody arrangements, visitation schedules, and parental responsibilities. Ensuring that this right is effectively respected requires a careful balance between safeguarding the child’s emotional well-being and obtaining a genuine, unpressured expression of their wishes.
1. Age, Maturity and Judicial Discretion in Hearing the Minor
In custody and visitation disputes, judges assess both the child’s age and their psychological maturity when determining how to apply the minor’s right to be heard. While Spanish legislation and judicial practice frequently use the age of 12 as a general benchmark, this threshold is not absolute. Courts retain discretion to hear younger children where they demonstrate a sufficient level of understanding, emotional development, and ability to form and express their own views regarding the matters in dispute.
This assessment is typically carried out on a case-by-case basis, often with the support of specialised psychosocial teams attached to the courts, who evaluate the minor’s cognitive and emotional maturity, the consistency of their statements, and the absence of external influence or pressure. The objective is to ensure that the child’s participation is meaningful and authentic, rather than merely formal. As a result, even children below the age of 12 may be heard where appropriate, particularly in cases involving significant changes to their living arrangements or family dynamics.
Ultimately, the weight given to the minor’s views will depend not only on age, but on the degree of maturity demonstrated and the overall context of the case. The court must carefully balance the child’s expressed preferences with their best interests, ensuring that their voice is taken into account without transferring onto them the burden of decision-making in highly sensitive family matters.
2. Consequences of Failing to Respect the Minor’s Right to Be Heard
Failure to respect the minor’s right to be heard in custody and visitation proceedings may have significant procedural consequences, including the potential invalidity of the judicial decision. Under Spanish constitutional and procedural principles, the right of the child to be heard forms part of the broader right to effective judicial protection and due process. As such, omitting this essential procedural step—particularly where the child has sufficient maturity—may constitute a breach of fundamental rights.
Spanish case law has consistently held that decisions may be declared null and void where a minor was not given a genuine opportunity to express their views, especially in circumstances where their testimony could have been relevant to the court’s assessment of the child’s best interests. This is not merely a formal requirement: courts must ensure that the hearing is conducted in an appropriate manner, adapted to the child’s age and psychological condition, and free from external influence.
Consequently, the failure to hear the minor when required may lead to the annulment of the proceedings and the need to reopen the case, resulting in delays, additional costs, and increased emotional strain for all parties involved. For this reason, ensuring full compliance with this procedural safeguard is not only a matter of legal correctness, but a critical element in preserving the validity and enforceability of custody decisions.
3. Case Law on Minor’s Right To Be Heard
Ruling 731/2024, dated May 27, from the First Chamber of the Spanish Supreme Court, reaffirms the importance of the right of a minor with sufficient discernment, or who is over the age of twelve, to be heard in proceedings to modify custody and visitation orders. The violation of this right led the Supreme Court to annul the appellate ruling, and order the case to be sent back to the earlier stage of the proceedings, specifically to ensure that the Provincial Court could guarantee the minor’s right to be heard, and take into account the opinion expressed.
In fact, the Supreme Court holds that the minor’s right to be heard, as enshrined in Section 92 of the Spanish Civil Code, Section 9 of the Organic Law on the Legal Protection of Minors, and Section 770.1.4º of the Civil Procedure Law, means that the minor must be heard in any Court case that affects their family, personal, or social sphere. The minor’s opinions should be considered according to their age and maturity. In the case resolved by the ruling, neither the Court of First Instance nor the Provincial Court had heard the minor directly, even though the minor was over ten years old at the first instance, and twelve years old at the time of the appeal.
Moreover, the Supreme Court establishes that judicial bodies must even, on their own initiative, arrange for the hearing of the minor if necessary to protect their best interests. Indeed, this is not a mere formality, but rather a crucial element for safeguarding the rights and interests of minors. When they possess sufficient discernment, and certainly when they are over the age of twelve, failing to listen to their views on a matter as significant as the modification of custody and visitation orders not only breaks the law, but can also have a lasting impact on their well-being and future development.
4. The Minor’s Right to Be Heard in Cross-Border Custody Cases
In international custody disputes involving Spain, the minor’s right to be heard must also comply with EU Regulation 2019/1111 (Brussels II ter) and broader international child protection standards. These frameworks reinforce the obligation to ensure that children are given a real and effective opportunity to express their views in proceedings affecting them, particularly where decisions may have cross-border consequences.
This requirement is especially relevant in cases involving relocation, enforcement of visitation rights, or parental responsibility disputes across jurisdictions, where the child’s perspective may directly impact recognition and enforcement of decisions in other countries. Failure to properly hear the minor can not only affect the validity of the proceedings in Spain, but also create obstacles in the circulation of judgments within the EU.
5. Legal Advice on the Minor’s Right to Be Heard in Custody Proceedings
f you are involved in custody or visitation litigation, ensuring that the minor’s right to be heard in custody proceedings is properly respected is essential. Procedural errors at this stage may affect the validity of the court’s decision and lead to appeals.
As a lawyer experienced in family law and complex custody disputes, I provide strategic legal advice to safeguard children’s procedural rights while protecting parental interests. Early legal intervention can make a decisive difference in the outcome of the case.
