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:
- only one of the parents has legally recognized or adopted the child;
- the other parent has passed away, is presumed dead, is absent, or is legally incapacitated; or
- the court has legally taken away custody rights from the other parent.1
Legal custody can also be temporarily suspended due to:
- a judicial declaration of absence or incapacitation of one of the parents;
- a temporary illness that affects the parent’s ability to effectively carry out his/her rights and responsibilities towards the child;
- 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
- 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 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
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”:
- aggravated abuse;
- abuse by threat;
- abuse by the restriction of freedom; or
- sexual assault by a partner.3
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