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;1 or
- only one of the parents has recognized or adopted the child.2
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.3
1 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.
1 31 L.P.R.A § 591
2 31 L.P.R.A § 632
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 interest 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 interest of the child. The policy also promotes the active participation by both parents in the life of the child(ren).1
However, Puerto Rican law requires that the judge take into account whether or not there has been a history of domestic violence when determining custody or “la patria potestad” (the rights and responsibilities of caring for the child(ren).2 Among other things, the judge should take into account if that parent has participated in a diversion program or has been convicted of any of the following crimes:
- aggravated abuse;
- threatened abuse;
- abuse by means of restricting one’s freedom; or
- marital sexual assault.3
You can find more information about the factors that a judge will consider on our page How will a judge make a decision with respect to patria potestad and custody?
1 32 L.P.R.A. § 3187(6)
2Id., 31 L.P.R.A. § 283
3 8 L.P.R.A. § 631-636
Can the child's grandparents, uncles or aunts get visitation?
After the break-up of the nuclear family (whether due to death of one of the parents, divorce, separation or annulment), the law states that the parent or person with legal custody cannot prevent the child from having a relationship with his/her grandparents or uncles/aunts unless s/he has a fair reason to do so. The same holds true in a situation where the child’s parents were never married.
If the parent or person with legal custody denies a relationship between the minor and the grandparents or uncles/aunts, then the relative who wants to see the child can file in court for visitation and the judge will decide whether to grant it or not based upon the best interests of the child.1
1 31 L.P.R.A § 591a