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.

The public policy of Puerto Rico is to promote, as a first option, joint custody so that both parents are responsible for the child as long as it is in the best interests of the child.¹ However, the judge could make a different decision regarding physical and legal custody based on what s/he believes is in the best interests of the child. The judge will consider any factor that s/he considers important to make a decision, including:

1. the mental health of both parents and of the child;
2. the level of responsibility or moral integrity of each parent;
3. if there has been a history of domestic violence;
4. the parents’ ability to fulfill the child’s emotional, moral, and financial current and future needs;
5. the relationship of each parent with the child before and after the separation or divorce;
6. the specific needs of each child;
7. the relationship of the child with his/her parents, siblings, and other members of the family;
8. the ability, availability, and commitment of the parents to raise the child jointly;
9. the reasons that the parent or parents are requesting shared legal and/or physical custody;
10. if the parents’ employment does or does not hinder shared custody;
11. if the location and distance between the parents’ homes can hinder the child’s education;
12. the communication between the parents and the ability to communicate directly or through other mechanisms; and
13. any other criteria that could be considered to guarantee a custody arrangement that is in the best interests of the child.²

The judge will also analyze if there’s “parental alienation” or any other reasons that are causing the child to resist having a relationship with his/her parents.³

¹ 32 L.P.R.A. § 3181
² 31 L.P.R.A. § 7283
³ 32 L.P.R.A. § 3185

You do not need a lawyer to file for custody, legal custody (patria potestad), or visitation. However, with the help of a lawyer, it may be easier for you to gather and present the information you will need to convince the judge of your position on what the custody or visitation schedule should be. Also, if the other parent has a lawyer, it will be more difficult for you to present your case without your own lawyer. For lawyers, some of whom might provide free legal assistance, go to our PR Finding a Lawyer page.

Note: Although Puerto Rico law does allow for self-representation (pro se litigation), the judge can decide that a person is unfit to represent himself/herself and order that s/he get a lawyer.¹ In this link, you can find programs that help pro se litigants: Poder Judicial de Puerto Rico.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

¹ Poder Judicial de Puerto Rico - Self-representation orientation

Before you file for custody, which includes patria potestad (legal custody) and physical custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of shared or joint custody order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page. 

In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.

The legal paperwork that starts a custody case is called a petition. You can file a petition for patria potesdad (legal custody), custody, or visitation in the superior court closest to where the child lives.¹

The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing for visitation as a non-parent, go to Can the child’s grandparents, uncles, or aunts get visitation? or talk to a lawyer.

The custody petition forms you need will be available at your local courthouse. Many forms are also available online.

Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our Puerto Rico Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition.² That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a restraining order, also called a protection order and get temporary custody as part of the protection order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.

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

There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.

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.