What are some pros and cons of starting a custody case?
There are many reasons people choose not to file for custody. 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 (and get) more custody or visitation rights than they are comfortable with.
However, getting a custody order from a court can give you certain legal rights. Getting 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 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. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support. For information on filing for child support, you can contact your local courthouse by going to our PR Courthouse Locations page 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.
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 31 L.P.R.A. §§ 6793 & 6809
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:
- the mental health of both parents and of the child;
- the level of responsibility or moral integrity of each parent;
- if there has been a history of domestic violence;
- the parents’ ability to fulfill the child’s emotional, moral, and financial current and future needs;
- the relationship of each parent with the child before and after the separation or divorce;
- the specific needs of each child;
- the relationship of the child with his/her parents, siblings, and other members of the family;
- the ability, availability, and commitment of the parents to raise the child jointly;
- the reasons that the parent or parents are requesting shared legal and/or physical custody;
- if the parents’ employment does or does not hinder shared custody;
- if the location and distance between the parents’ homes can hinder the child’s education;
- the communication between the parents and the ability to communicate directly or through other mechanisms; and
- 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 31 L.P.R.A. § 7283
3 32 L.P.R.A. § 3185
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
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