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Know the Laws: Puerto Rico

UPDATED January 10, 2017

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Information about custody in Puerto Rico.

Basic info and definitions

back to topWhat is custody and patria potestad (legal custody)?

Physical custody (custodia física) means the physical care and supervision of your children.  In other words, this generally refers to which parent lives with the child on a daily basis.  Custody can be shared, which means that there can be an arrangment where the children spend part of the time with one parent and part with the other.  The custody arrangment can range from the child living with one parent and the other parent only having visitation to the time being divided between the parents on a weekly or monthly basis.* 

Legal custody (patria potestad) means the right to make important decisions for your children, such as the school they attend, what medical treatment they receive and the religious training of your children.*

* See the PR Judicial Website

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back to topWhat are some advantages and disadvantages of getting a custody order?

There are many reasons people choose not to file for custody.  For example, some people decide not to get a custody order because they don’t want to get the courts involved.  Some parents make an informal agreement that works well for them.  Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for more custody or visitation rights than they are comfortable with.  In some states, some mothers may not need to file for custody if the father's paternity has not been legally established. 

However, a custody order can give you:

  • The right to make decisions about your child; and/or
  • The right to residency (to have your child live with you).

Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day.  However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.

We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation.  You can find contact information for legal help by clicking on the PR Finding a Lawyer page.

Some people think they should file for custody so they can get child support but this is not necessarily true.  A custody order will not automatically give you child support - and you may not need a custody order to file for child support.  For information on filing for child support, you can contact your local courthouse by going to our PR Courthouse Locations, contact the Administración de Sustento de Menores (ASUME) page or talk to a lawyer.

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back to topShould I start a court case to ask for supervised visitation?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised.  If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits.  We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure.  Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised.  Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to PR Finding a Lawyer to seek out legal advice.

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Who can get custody, patria potestad (legal custody,) or visitation

back to topWho has patria potestad (legal custody) when there is no court order?

Generally, both parents have "patria potestad" jointly (which is like legal custody rights).  However, only one of the parents may have legal custody rights if:

  1. the other parent has passed away, is absent, or is legally prevented from having this right;* or
  2. only one of the parents has recognized or adopted the child.**

Note: After a marriage ends, if one of the parents voluntarily abandons his/her child for at least a six-month period, this could be a reason why a judge may order (after a trial) that the parent loses his/her rights to legal custody.***

* Usually, a parent is "legally prevented" from having legal custody if s/he has been legally declared incompetent by a judge due to mental health issues, among other reasons.
* 31 L.P.R.A § 591
** 31 L.P.R.A § 632

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back to topCan a parent who committed violence get custody or visitation?

It is possible for a parent who has committed domestic violence to get custody or visitation if the judge determines that it is in the best interest of the child. 

The public policy of Puerto Rico is to promote, as a first option, joint custody and both of the parents being responsible for the children whenever it is in the best interest of the child.  The policy also promotes the active participation by both parents in the life of the child(ren).*

However, Puerto Rican law requires that the judge take into account whether or not there has been a history of domestic violence when determining custody or "la patria potestad" (the rights and responsibilities of caring for the child(ren).**  Among other things, the judge should take into account if that parent has participated in a diversion program or has been convicted of any of the following crimes:  

  • abuse;
  • aggravated abuse;
  • threatened abuse;
  • abuse by means of restricting one's freedom; or
  • marital sexual assault.***

You can find more information about the factors that a judge will consider on our page How will a judge make a decision with respect to patria potestad and custody?

* 32 L.P.R.A. § 3187(6)
** Id., 31 L.P.R.A. § 283
*** 8 L.P.R.A. § 631-636

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back to topCan the child's grandparents, uncles or aunts get visitation?

After the break-up of the nuclear family (whether due to death of one of the parents, divorce, separation or annulment), the law states that the parent or person with legal custody cannot prevent the child from having a relationship with his/her grandparents or uncles/aunts unless s/he has a fair reason to do so.  The same holds true in a situation where the child's parents were never married.

If the parent or person with legal custody denies a relationship between the minor and the grandparents or uncles/aunts, then the relative who wants to see the child can file in court for visitation and the judge will decide whether to grant it or not based upon the best interests of the child.*

* 31 L.P.R.A § 591a

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The custody process

back to topHow and where do I file for custody or visitation?

The type of petition to submit depends on the circumstances of each case.  A lawyer with experience in custody matters in Puerto Rico can advise you as to which one to use and how the process will go in your specific situation.  On our page PR Finding a Lawyer, you can find lawyers in Puerto Rico, some of whom provide services at low or no cost for people who qualify.

If you are married but a spouse filed for divorce, usually the court will make a decision about the custody and visitation with minor children as part of the divorce proceeding.  Initially, a judge can order temporary/provisional custody of the children and then later make a final decision with regard to the wellbeing of the child(ren).*

If the partner is not getting a divorce or was never married, the non-custodial parent can file for custody in the superior court closest to where the child(ren) reside(s).**

* 31 L.P.R.A. § 341
** 32a L.P.R.A. AP. V § 3.5

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back to topCan I get a temporary custody as a part of a protection from abuse order?

Yes.  When you file for a protection order, you can ask the judge to grant you temporary custody of the minor child.*  Usually, that custody order will be valid for the same period of time that the protection order is valid, which means it may be necessary to file for custody separately in civil court.

For more information about protection orders and what you can ask for in them, please read our section on How can a protection order help me?

* Vea 8 L.P.R.A. § 621

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back to topHow will a judge make a decision about custody and patria potestad (legal custody)?

The judge will make a decision regarding physical and legal custody based on what s/he believes is in the best interest of the child.  The judge will consider any factor that s/he considers important to make a decision. 

The judge can consider factors such as the following:

  • The mental health of both parents and that of the child;
  • The level of responsibility or moral integrity of each parent, including if there has been a history of domestic violence;
  • The specific needs of the child;
  • The child's preference as to custody;
  • The sex, age, mental and physical health of the child;
  • The care/love that the parents can provide and their psychological health;
  • The parents' ability to fulfill the child's emotional, moral, and financial needs;
  • The adaptation of the child to his/her home, school and community; and
  • The child's ability to have a relationship with the parents, siblings, and other family members.*

It is up to the judge whether or not to listen to testimony from the child when deciding physical and legal custody.**

* 32 L.P.R.A. sec. 3185
**31 L.P.R.A. § 383

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back to topWhat factors will the judge consider before establishing joint custody?

Before the judge establishes joint custody, even if the parents are in agreement, the court will investigate:

  1. If the parents are capable, willing and have the desire to assume the responsibility associated with joint custody, which includes setting aside the personal problems they have between them;
  2. If the parents can communicate well enough to be able to make decisions in the best interest of the child;
  3. If there is a substantial degree of hostility and tension between the parents;
  4. If there is a real probability that future conflicts will make it impossible to carry out the terms of the shared custody;
  5. The opinion of the minor child, if the child is permitted to express one based on his/her age;
  6. The real motives and objectives behind the request for shared custody;
  7. If the employment of one of the parents will make it difficult to carry out the terms of the agreement;
  8. If the incomes of both parents permit them to cover any additional costs that may arise because of joint custody; and
  9. If the distance between the homes will affect the child's education.

Once these factors have been considered, along with any other relevant issues, the judge will make a decision based on what is in the best interest of the child.* 

Joint custody will not be considered beneficial and favorable for the minor child in the following cases:

  1. One of the parents gives up joint custody;
  2. In the opinion of a mental health professional, one of the parents has a mental handicap or deficiency that is not curable and will make it difficult for them to protect the physical, mental, emotional and/or sexual well-being of the minor when they are with them;
  3. Acts by the parent endanger or set a bad example for the minor child;
  4. One of the parents is incarcerated;
  5. One of the parents has a criminal conviction for domestic violence;
  6. One of the parents has committed sexual abuse or any sexual crime against a minor (it does not have to be against their child); and
  7. One of the parents or their partner is addicted to alcohol or illegal drugs.

Note: Once the court establishes joint custody, if the other parent does not permit the order to be carried out, the judge can amend the order and give sole custody to the other parent.**

* See the PR Judicial Website
** 32 L.P.R.A. § 3187

 

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back to topDo I need a lawyer to get custody, patria potestad (legal custody) or visitation?

You do not need a lawyer to file for custody, patria potestad (legal custody) or visitation.  However, with the help of a lawyer, it may be easier for you to gather and present the information you will need to convince the judge of your position on what the custody or visitation schedule should be.  Also, if the other parent has a lawyer, it will be more difficult for you to present your case.  For free legal assistance and legal referrals go to our PR Finding a Lawyer page.

Note: Although Puerto Rico law does allow for self-representation (pro se litigation),* the judge can decide that a person is unfit to represent himself/herself and order that s/he get a lawyer.  In this link, you can find programs that help pro se litigants: Rama Judicial de Puerto Rico.

* La Rama Judicial de Puerto Rico - Self-representation orientation

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After an order is in place

back to topIf a custody or visitation order is already in place, how can I get it changed?

Because an order for custody and visitation is determined based on the best interest of the child, normally it is not permanent.  If there is an existing custody or visitation order, it is possible that the court can amend it.*  In order to do so, you have the right to present an application in which you explain to the court the reasons for requesting a the change.  Usually the court will evaluate whether:

  • amending the custody and/or visitation order is in the best interest of the minor child; and
  • there has been a significant change in circumstances since the order was issued.*

* 32 L.P.R.A. sec. 3188

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back to topCan a parent who doesn’t get custody or patria potestad (legal custody) or that is not content with the existing order, change it?

A parent who has been denied custody and patria potestad will have the right to regain custody/patria potestad if they can prove to the court that the other parent has died or that regaining custody or patria potestad is in the best interest of the child.*  Usually, the judges will also decide whether there has been a substantial change to the circumstances since the order was issued.

* 31 L.P.R.A. § 383

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back to topIf there is a custody order in place, can I take my kids out of state?

It depends.  Generally, in most states, a parent can take his/her kids out of the state for a brief trip as long as there is no order prohibiting it and so long as it does not interfere with the other parent’s visitation rights.  However, if you are uncertain whether a planned trip may violate your custody order, please consult with a lawyer before leaving.

If you want to permanently move out of state (or move within the state to a distant location that would interfere with the other parent's visitation schedule), then you may have to return to court to try to modify the order to get permission to move and to change the terms of the court order.  As with any modification of a custody order, in order to get permission to move, you must prove to the judge that moving would be in the best interest of your child.  As with all custody issues, it is probably best to talk to a lawyer about this matter.  Please visit our PR Finding a Lawyer page.

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