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Legal Information: Puerto Rico

Puerto Rico Custody

Custody

Information about custody in Puerto Rico. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.

Basic info and definitions

What is custody and legal custody (patria potestad)?

Physical custody 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 arrangement where the children spend part of the time with one parent and part with the other. The custody arrangement 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.1

Legal custody (patria potestad) means the rights and responsibilities parents usually have over their children. These include the right to make important decisions for your children, such as the school they attend, what medical treatment they receive, and their religious upbringing. It also deals with the parental responsibilities associated with providing food, shelter, and discipline, and making financial decisions for their benefit.1

1 See the Puerto Rico Judicial Branch website

What 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 and territories, unmarried 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, which means 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), or talk to a lawyer.

Should 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, 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/territory, county, or judge, the judge might order a professional to observe the other parent during 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.

If you need to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits can be appropriate. To find out what may be best in your situation, please go to our PR Finding a Lawyer page to seek out a lawyer who can give you legal advice.

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

Who has legal custody (patria protested) when there is no court order?

Generally, if there is no court order, parents have legal custody or “patria potestad” jointly. However, only one of the parents may have legal custody rights if:

  1. only one of the parents has legally recognized or adopted the child;
  2. the other parent has passed away, is presumed dead, is absent, or is legally incapacitated; or
  3. the court has legally taken away custody rights from the other parent.1

Legal custody can also be temporarily suspended due to:

  1. a judicial declaration of absence or incapacitation of one of the parents;
  2. a temporary illness that affects the parent’s ability to effectively carry out his/her rights and responsibilities towards the child;
  3. a temporary jail stay for a criminal conviction, such as the ones listed in Can legal custody (patria potestad) be taken away from one of the parents?; or
  4. any other reason that could harm the child’s physical or emotional wellbeing.2

1 Art. 597, 2020 Puerto Rico Civil Code
2 Art. 611, 2020 Puerto Rico Civil Code

Can legal custody (patria potestad) be taken away from one of the parents?

A parent could temporarily or permanently1 lose legal custody of his/her child based on a number of circumstances, including:

  • abandoning the child without a good reason to do so (“just cause”);
  • putting the child at risk of emotional, mental, and physical harm or letting someone else inflict that harm on the child; or
  • a criminal conviction for certain crimes, including:
    • child abuse;
    • not paying child support;
    • domestic violence;
    • sexual assault;
    • kidnapping; and
    • illegal restriction of custody rights; and
  • any of the additional reasons listed in Article 615 of the law.2

Note: A parent shouldn’t lose legal custody for being abused by the other parent unless the judge finds that the abused parent voluntarily and knowingly participated in child abuse or neglect.3

1 Art. 613 & 617, 2020 Puerto Rico Civil Code
2 Art. 615, 2020 Puerto Rico Civil Code
3 Art. 616, 2020 Puerto Rico Civil Code

Can 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 interests 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 interests of the child. The policy also promotes the active participation by both parents in the life of the child.1

However, Puerto Rico’s laws require that the judge consider whether or not there has been a history of domestic violence when determining custody or legal custody (“patria potestad”).2 Among other things, the judge should take into account if that parent has been convicted of any of the following crimes that are considered “domestic violence”:

You can find more information about the factors that a judge will consider in a custody case in How will a judge make a decision with respect to legal custody (patria potestad) and custody?

1 32 L.P.R.A. § 3181
2 32 L.P.R.A. § 3187; Art. 615, 2020 Puerto Rico Civil Code
3 8 L.P.R.A. § 631-635

Can the child's grandparents, uncles or aunts get visitation?

Under Puerto Rico law, parents with legal custody are the ones to decide if the child can visit with other people in or outside of the family and the judge will generally assume that it is the right decision. However, someone who was denied visitation can file a petition in court to request visitation. If the person can prove with clear and convincing evidence that there are other considerations that should be accounted for, a judge might be able to overrule the parent’s decision and order visitation. The judge could consider, for example, if the relationship between the child and the person seeking visitation is important for the child’s development, or if the child has been under the temporary care of the person requesting visitation. Still, even if the judge ordered visitation, the parents would be the ones to decide on the timing and place of visitation, considering the best interests of the child.1

1 Art. 619, 2020 Puerto Rico Civil Code

The custody process

How and where do I file for legal custody (patria potestad), custody, or visitation?

You can file a petition for legal custody, custody, or visitation in the superior court closest to where the child lives.1

If you are going through a divorce proceeding and you and your spouse cannot agree on custody and visitation of the child, usually the judge will make a decision as part of the divorce proceeding. Initially, a judge can order temporary custody of the child and then later make a final decision with regard to the wellbeing of the child.2

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

1 32a L.P.R.A. AP. V § 3.5
2 Art. 446 & Art. 462, 2020 Puerto Rico Civil Code

Can I get a temporary custody as a part of a protection from abuse order?

When you file for a protection order, you can ask the judge to grant you temporary custody of the minor child.1 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 superior court.

For more information about protection orders and what you can ask for in them, please read our section on What protections can I get in a protection order?

1 See 8 L.P.R.A. § 621

How will a judge make a decision about custody and legal custody (patria protested)?

The public policy of Puerto Rico is to promote, as a first option, joint custody so that both parents are responsible for the child as long as it is in the best interests of the child.1 However, the judge could make a different decision regarding physical and legal custody based on what s/he believes is in the best interests of the child. The judge will consider any factor that s/he considers important to make a decision, including:

  1. the mental health of both parents and of the child;
  2. the level of responsibility or moral integrity of each parent;
  3. if there has been a history of domestic violence;
  4. the parents’ ability to fulfill the child’s emotional, moral, and financial current and future needs;
  5. the relationship of each parent with the child before and after the separation or divorce;
  6. the specific needs of each child;
  7. the relationship of the child with his/her parents, siblings, and other members of the family;
  8. the ability, availability, and commitment of the parents to raise the child jointly;
  9. the reasons that the parent or parents are requesting shared legal and/or physical custody;
  10. if the parents’ employment does or does not hinder shared custody;
  11. if the location and distance between the parents’ homes can hinder the child’s education;
  12. the communication between the parents and the ability to communicate directly or through other mechanisms; and
  13. any other criteria that could be considered to guarantee a custody arrangement that is in the best interests of the child.2

The judge will also analyze if there’s “parental alienation” or any other reasons that are causing the child to resist having a relationship with his/her parents.3

1 32 L.P.R.A. § 3181
2 Art. 604, 2020 Puerto Rico Civil Code
3 32 L.P.R.A. § 3185

When could joint custody not be granted?

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

  1. 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 him/her to adequately protect the physical, mental, and emotional safety and integrity of the child;
  2. acts committed by one of the parents endanger or set a bad example for the minor child;
  3. one of the parents is incarcerated;
  4. one of the parents has a criminal conviction for “domestic violence,” which includes the following crimes:
  5. one of the parents has committed sexual abuse or any sexual crime against any minor child – it does not have to be against his/her own child;
  6. one of the parents or his/her current intimate partner has been convicted of child abuse; or
  7. one of the parents or his/her current intimate partner is addicted to alcohol or illegal drugs.1

1 8 L.P.R.A. § 631-635
2 Art. 605, 2020 Puerto Rico Civil Code

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

You do not need a lawyer to file for custody, legal custody (patria potestad), 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 without your own lawyer. For lawyers, some of whom might provide free legal assistance, 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.1 In this link, you can find programs that help pro se litigants: Rama Judicial de Puerto Rico.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

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

After an order is in place

If 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 judge can amend it.1 In order to do so, you have the right to file a petition in which you explain to the judge the reasons for requesting a the change. Usually the judge 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.1

1 32 L.P.R.A. § 3188

If there is a custody order in place, can I take my kids out of Puerto Rico?

Generally, in most states and U.S. territories, a parent can take his/her kids out of the state or territory 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 off of the island (or move within the island 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 interests 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.