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EspañolWho has parental authority (patria protested) when there is no court order?
Generally, if there is no court order, parents have shared parental authority (patria potestad). However, only one of the parents may have parental authority rights if:
- only one of the parents has legally recognized or adopted the child;
- the other parent has passed away, is presumed dead, is absent, or has been judicially declared as incapacitated; or
- the court has legally taken away parental authority rights from the other parent.1
1 31 L.P.R.A. § 7256
What happens if the parents have shared parental authority but disagree on decisions about the child?
When you and the other parent share parental authority over the child and cannot agree on a decision, the judge can hold a hearing to decide which parent will exercise their parental authority on that particular issue. If disagreements between you and the other parent are affecting how shared parental authority is being carried out, the judge can:
- give partial or complete parental authority to just one of the parents;
- divide parental authority over the more problematic issues between the parents; or
- order shared parental authority but sole custody to one parent.1
The judge may delay their decision to give you and the other parent a chance to go through mediation or other processes to resolve the issues or handle other matters related to your child’s upbringing.1 However, mediation and similar alternatives are usually not advised when there has been domestic violence in the relationship.
1 31 L.P.R.A. § 7291
Can parental authority (patria potestad) be taken away from one of the parents?
A parent could lose parental authority (patria potestad) of their child temporarily or permanently.1 This could happen based on several circumstances, including:
- putting the child at risk of emotional, mental, and physical harm or letting someone else inflict that harm on the child;
- abandoning the child without a good reason to do so (“just cause”);
- 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 the law.2
Note: A parent shouldn’t lose parental authority for being abused by the other parent unless the judge finds that the abused parent voluntarily and knowingly participated in their child or other family member’s abuse or neglect.3
1 31 L.P.R.A. §§ 7321
2 31 L.P.R.A. § 7322
3 31 L.P.R.A. § 7323
When could shared custody not be granted?
Shared custody will not be considered beneficial and favorable for the best interest of the minor child when:
- one of the parents is not interested in having shared custody;
- 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 them to adequately protect the physical, mental, emotional, and sexual safety and integrity of the child;
- the actions or inactions of one of the parents endanger or set a bad example for the minor child;
- one of the parents, their spouse, or their intimate partner has been convicted of child abuse;
- one of the parents is incarcerated;
- one of the parents has a criminal conviction for “domestic violence,” as explained in What is the legal definition of domestic violence in Puerto Rico?
- one of the parents has committed sexual abuse or any sexual crime against a minor child; and
- one of the parents, their spouse, or their intimate partner, is addicted to illegal drugs or alcohol.1
1 32 L.P.R.A. § 3187
What happens when shared custody is issued but one parent refuses to work together with the other parent?
When shared custody is issued but one parent refuses to accept the judge’s order and acts in a way that interferes with the other parent’s relationship with the child, there can be serious consequences. If one parent is accused of this sort of “parental alienation,” the judge can order an evaluation by Family Services or a licensed professional who will evaluate all parties and prepare a report for the judge. If the judge finds evidence that one parent did, in fact, commit “parental alienation,” the judge can take custody away from that parent or make other requirements that must be followed, such as attending therapy. In addition, if the judge believes that the parent’s actions have caused emotional or psychological damage to the children, the judge can order the parent to pay for therapy for the child.1
1 31 L.P.R.A. § 7284
Can a parent who committed violence get parental authority (patria potestad), custody, or visitation?
Puerto Rico’s laws require that the judge consider certain behaviors when deciding the role a parent will have in their child’s life. In this section, we only mention the factors related to domestic or sexual violence. However, you can see the cited statutes on our Selected Puerto Rico Statutes page.
Parental authority (patria potestad)
Parental authority can be taken away for the following reasons:
- putting the child at significant risk or causing physical, mental, or emotional harm;
- allowing someone else to put the child at significant risk or cause physical, mental, or emotional harm;
- engage in behaviors that could be considered any of the following crimes:
- abuse or negligence against a minor;
- murder, homicide, manslaughter, or attempt to commit any of these, as defined in the Puerto Rico Penal Code;
- crimes against corporal integrity, which include assault;
- taking away custody illegally;
- sexual assault;
- incest;
- lewd acts; or
- abuse, aggravated abuse, threats of abuse, abuse through restrictions on freedom, and marital sexual assault.1
You can see more information in Can parental authority (patria potestad) be taken away from one of the parents?
Shared custody
Shared custody will not be considered beneficial for the best interest of the child when one of the parents:
- through their actions or inactions, endanger or set a bad example for the minor child;
- their spouse, or their intimate partner, has been convicted of child abuse;
- has a criminal conviction for “domestic violence,” as explained in What is the legal definition of domestic violence in Puerto Rico?; or
- has committed sexual abuse or any sexual crime against a minor child.2
You can find more information in When could shared custody not be granted?
Visitation
Even though the law does not mention the specific behaviors that would allow the judge to restrict visitation between the parent and the child, it does say that the judge can limit or suspend visitation as needed to protect the mental and physical integrity of the child. However, it goes on to specify that the judge may do so if there are “severe circumstances” that require such restrictions.3
You can find more information about the factors that a judge will consider in a custody case in How will a judge decide on custody and parental authority (patria potestad)?
1 31 L.P.R.A. § 7322
2 32 L.P.R.A. § 3187
3 31 L.P.R.A. § 7331
Can the child's grandparents, uncles, or aunts get visitation?
Under Puerto Rico law, parents with parental authority (patria potestad) 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
