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