What is an order of protection for the welfare and protection of children?
This is a civil court order that is signed by a judge when s/he determines that there is reason to believe that the child has been a victim of abuse or neglect or that s/he is at risk of immediately becoming a victim of abuse or neglect. Taking into account the best interests and safety of the child, the judge can order the parent or person responsible for the abuse to stop any abusive behavior and/or negligent conduct.1
1 See 8 L.P.R.A. §§ 1181-1187
What is the legal definition of child abuse in Puerto Rico?
Abuse is when a parent or guardian does something, or fails to do something, that intentionally harms a child or puts a child at risk of mental, physical, or emotional harm, including sexual abuse or human trafficking. The following are also considered abuse:
- obscene behavior or using a child to behave in an obscene manner;
- allowing another person to harm or endanger the physical, mental, or emotional health of a child;
- voluntarily abandoning a child;
- when a parent or guardian exploits the child or allows another person to do so by forcing or allowing the child to perform any act, including but not limited to, using the child to perform an obscene act in order to make money or receive some other benefit;
- doing an act that if it were criminally prosecuted would be a crime against the child’s physical, mental, emotional health and integrity, including sexual abuse of the child or human trafficking;
- committing domestic violence in front of a child.1
1 8 L.P.R.A. § 1101(w)
What types of orders of protection for the welfare and protection of children are there? How long do they last?
Temporary ex parte order of protection
The court can issue a temporary ex parte order of protection if the judge determines:
- you tried to notify the abuser beforehand that you were filing a petition but you were not able to; or
- it’s possible that notifying the abuser beforehand will cause the harm that you are trying to avoid by applying for the order of protection; or
- the person who is filing the petition shows that there exists a great possibility of an immediate risk of abuse.1
(“Ex parte” is a Latin phrase which means to grant an order without notifying the other party beforehand.) The court will arrange for the abuser to be served with the papers immediately and the abuser will have the opportunity to tell his/her side of the story and oppose the order. The judge will set a hearing that will be scheduled within the next 5 days after the ex parte order of protection is issued. At the hearing, the judge will decide if s/he will issue a more final order of protection or not.1
Order of protection
This order is designed to protect a minor child from abuse or neglect for a longer period of time than the ex parte order. An order or protection can be issued after a hearing in front of a judge in which both parties have the opportunity to tell their sides of the story. The judge will include in the order the specific protections that the abuser must obey and the amount of time that the order will last.2
1 8 L.P.R.A. § 1184
2 8 L.P.R.A. § 1185
Who can apply for an order of protection?
Any of the following people can file for this order of protection on behalf of a minor against an someone who is abusing/neglecting a child or when the child is in immediate risk of being abused:
- the child’s parent;
- the school principal;
- a teacher;
- a school social worker;
- a police officer;
- an advocate of Children’s Affairs or an advocate of Family Matters (Procurador/a de Asuntos de Menores o Procurador/a de Asuntos de Familia);
- any prosecutor or officer authorized by the Department of Family Services; and/or
- any family member or person who is responsible for the minor child.1
1 8 L.P.R.A. § 1181
What protections can a child get in an order of protection for the welfare and protection of children?
In an order of protection, a judge can do one or more of the following:
- grant temporary custody of the mistreated child to the person who filed the petition, to the Department of Family Services or to the closest family member who can guarantee the best welfare and security of the child;
- order the abuser to move out of the home if s/he is living in the same house as the child;
- if the abuser is ordered to move out of the home, the judge can also order the abuser to pay the rent or mortgage of that home or to pay child support if s/he has a legal obligation to do so;
- order the abuser to stop harassing, stalking, intimidating or threatening the child, or to stop interfering with the temporary custody granted to the petitioner or to a close family member;
- order the abuser to stay away from the child or from any place where the child is;
- order the abuser to attend a program or treatment to control his/her abusive or negligent behavior;
- order the abuser to pay for any treatment or any program the child may need as a result of the abuse; and
- order anything else that the judge believes is necessary.1
1 8 L.P.R.A § 1183
What are the steps to getting this order of protection?
The steps to get an order of protection for the welfare and protection of children are similar to the steps for getting a protection order for an adult victim of domestic violence. However, the way in which a proceeding for this type of order of protection is started may be different. Specifically, the proceeding to file for an order of protection for the welfare and protection of children can begin:
- by filing a written or oral petition;
- as part of any custody case or deprivation of parental rights case;
- through a petition from the advocate of Family Matters, an advocate of children, or any prosecutor within a criminal process or as part of the terms of probation or conditional discharge; or
- within any other legal proceeding.1
The necessary court forms that are needed to file a petition for this order of protection will be available at the courthouse, as well as help and guidance on how to fill out and file the forms. Once this process is completed, the court will send a summons to both parties for a hearing at the court. If a person who is summoned to court does not show up, s/he can be charged with contempt of court.1
1 8 L.P.R.A. § 1182
What happens if the abuser violates the order of protection?
If you believe that the abuser has violated the order of protection, you can call the police to report the violation. Violation of a an order of protection can be considered a felony in the fourth degree.1 Furthermore, you may be able to file a petition for contempt of court in the court that issued the order since a violation of the order can be considered contempt of court. The punishment for contempt can be a jail sentence, a fine, or both.2
1 8 L.P.R.A. § 1187
2 Vea 8 L.P.R.A. § 1185