How and where do I file for custody or visitation?
El tipo de petición a presentarse va a depender de las circunstancias de cada caso. Un/a abogado/a con experiencia en custodia en Puerto Rico puede asesorarle sobre cuál y cómo sería el proceso en su situación específica. En nuestra página PR Encontrando a un Abogado, puede encontrar abogados/as en Puerto Rico, algunos/as de los/as cuales pueden proveer servicios a bajo o ningún costo para personas que cualifican.
Si está casado/a pero un/a cónyuge solicitó un divorcio, usualmente el tribunal decidirá sobre la custodia y la visitación de los/as menores en el matrimonio como parte de un divorcio. Inicialmente puede ordenar la custodia provisional/temporera de los/as hijos/as y luego establecer una final de acuerdo al bienestar de los/as menores.1
Si la pareja no se está divorciando o nunca ha estado casada, el/la padre/madre que no tiene custodia puede presentar la petición en el tribunal superior más cercano a la residencia de el/la menor.2
1 31 L.P.R.A. § 341
2 32a L.P.R.A. AP. V § 3.5
Can 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.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 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?
1 Vea 8 L.P.R.A. § 621
How 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.1
It is up to the judge whether or not to listen to testimony from the child when deciding physical and legal custody.2
1 32 L.P.R.A. sec. 3185
231 L.P.R.A. § 383
What 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:
- 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;
- If the parents can communicate well enough to be able to make decisions in the best interest of the child;
- If there is a substantial degree of hostility and tension between the parents;
- If there is a real probability that future conflicts will make it impossible to carry out the terms of the shared custody;
- The opinion of the minor child, if the child is permitted to express one based on his/her age;
- The real motives and objectives behind the request for shared custody;
- If the employment of one of the parents will make it difficult to carry out the terms of the agreement;
- If the incomes of both parents permit them to cover any additional costs that may arise because of joint custody; and
- 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.1
Joint custody will not be considered beneficial and favorable for the minor child in the following cases:
- One of the parents gives up joint custody;
- 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;
- Acts by the parent 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;
- 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
- 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.2
1 See the PR Judicial Website
2 32 L.P.R.A. § 3187
Do 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),1 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.
1 La Rama Judicial de Puerto Rico - Self-representation orientation
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.