Who has patria potestad (legal custody) when there is no court order?
Generally, both parents have "patria potestad" jointly (which is like legal custody rights). However, only one of the parents may have legal custody rights if:
- the other parent has passed away, is absent, or is legally prevented from having this right;* or
- only one of the parents has recognized or adopted the child.**
Note: After a marriage ends, if one of the parents voluntarily abandons his/her child for at least a six-month period, this could be a reason why a judge may order (after a trial) that the parent loses his/her rights to legal custody.***
* Usually, a parent is "legally prevented" from having legal custody if s/he has been legally declared incompetent by a judge due to mental health issues, among other reasons.
* 31 L.P.R.A § 591
** 31 L.P.R.A § 632