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:
- 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 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:
- 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;
- acts committed by one of the parents endanger or set a bad example for the minor child;
- one of the parents is incarcerated;
- one of the parents has a criminal conviction for “domestic violence,” which includes the following crimes:
- 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;
- one of the parents or his/her current intimate partner has been convicted of child abuse; or
- 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