Physical custody means the physical care and supervision of your children. In other words, this generally refers to which parent lives with the child on a daily basis. Custody can be shared, which means that there can be an arrangement where the children spend part of the time with one parent and part with the other. The custody arrangement can range from the child living with one parent and the other parent only having visitation to the time being divided between the parents on a weekly or monthly basis.¹

Legal custody (patria potestad) means the rights and responsibilities parents usually have over their children. These include the right to make important decisions for your children, such as the school they attend, what medical treatment they receive, and their religious upbringing. It also deals with the parental responsibilities associated with providing food, shelter, and discipline, and making financial decisions for their benefit.¹

¹ See the Puerto Rico Judicial Branch website

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 31 L.P.R.A. §§ 7313 & 7324
² 31 L.P.R.A. § 7322
³ 31 L.P.R.A. § 7323

Joint custody will not be considered beneficial and favorable for the minor child in any the following cases:

1. 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 him/her to adequately protect the physical, mental, and emotional safety and integrity of the child;
2. acts committed by one of the parents endanger or set a bad example for the minor child;
3. one of the parents is incarcerated;
4. one of the parents has a criminal conviction for “domestic violence,” which includes the following crimes:
   • abuse;
   • aggravated abuse;
   • abuse by threat;
   • abuse by the restriction of freedom; or
   • sexual assault by a partner;¹
5. one of the parents has committed sexual abuse or any sexual crime against any minor child – it does not have to be against his/her own child;
6. one of the parents or his/her current intimate partner has been convicted of child abuse; or
7. one of the parents or his/her current intimate partner is addicted to alcohol or illegal drugs.²

¹ 8 L.P.R.A. § 631-635
² 32 L.P.R.A. § 3187

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 31 L.P.R.A. § 7332

There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for (and get) more custody or visitation rights than they are comfortable with.

However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:

• The right to make decisions about your child and/or
• The right to residency (to have your child live with you).

Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day. However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.

We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the PR Finding a Lawyer page.

Some people think they should file for custody so they can get child support. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support. For information on filing for child support, you can contact your local courthouse by going to our PR Courthouse Locations page or talk to a lawyer.

Before filing for custody, you may consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Oftentimes, parents who fight for sole custody will litigate in court for months or even years and end up with some joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.

If you decide to file in court for custody, the process usually looks similar to this:

1. File for custody. You can file a petition for legal custody, custody, or visitation in the superior court closest to where the child lives.¹ Depending on the circumstances, the judge can make an emergency or temporary order as part of your petition.² The exact petition you file may depend on whether you are married or not:

• If you are a married parent filing for divorce, you can usually include the custody petition within the divorce process.
• If you are a married parent not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
• You can also seek custody in court if you are an unmarried parent. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process. 

2. Prepare for the custody process

The court custody process is usually very long and emotionally and financially draining. If you represent yourself in court, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section. If you can hire an attorney, you can use this list of questions as your guide when deciding who to hire.

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case about why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see the question How will a judge decide custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child, and many states consider that this is to have a relationship with both parents.

3. Prepare for trial

There will be one or more hearings, including a trial if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney can present evidence and cross-examine the other party to help the judge make a decision.

If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:

• communications between the parents can only be in writing;
• all communications can only be related to the child; and
• a neutral third party should be present at the exchange of the child or the one to drop off and pick up the child.

You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child to avoid future conflicts.

4. Options if you lose the custody case

There could be a couple of options that are filed immediately after the judge makes the custody order:

• A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
• An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.

A petition to change (modify) the order is an option that would not be filed immediately. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.

Please contact a lawyer to learn more about how the process works in your area. Please visit our Puerto Rico Finding a Lawyer page to find legal help in your area.​ You can also watch our Custody, Visitation, and Child Support videos, where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider regarding child support and moving out of state with your child.

¹ 32a L.P.R.A. AP. V § 3.5
² 31 L.P.R.A. §§ 6793 & 6809

When you file for a protection order, you can ask the judge to grant you temporary custody of the minor child.¹ Usually, that custody order will be valid for the same period of time that the protection order is valid, which means it may be necessary to file for custody separately in superior court.

For more information about protection orders and what you can ask for in them, please read our section on What protections can I get in a protection order?

¹ See 8 L.P.R.A. § 621

Generally, in most states and U.S. territories, a parent can take his/her kids out of the state or territory for a brief trip as long as there is no order prohibiting it and so long as it does not interfere with the other parent’s visitation rights. However, if you are uncertain whether a planned trip may violate your custody order, please consult with a lawyer before leaving.

If you want to permanently move off of the island (or move within the island to a distant location that would interfere with the other parent’s visitation schedule), then you may have to return to court to try to modify the order to get permission to move and to change the terms of the court order. As with any modification of a custody order, in order to get permission to move, you must prove to the judge that moving would be in the best interests of your child. As with all custody issues, it is probably best to talk to a lawyer about this matter. Please visit our PR Finding a Lawyer page.