According to Puerto Rico Code, parents typically share legal custody, known as “patria potestad,” when there is no judicial decree.
In situations when the custodial decision becomes disputed between the parents, the family relations social worker will be asked to evaluate the situation and provide a report for the court with recommendations.
The following criteria will be considered by both the social worker as well as the court when making a determination: PR Laws tit. 1, 3185
- The mental health of both parents, as well as that of the child or children whose custody is to be awarded.
- The level of responsibility or moral integrity exhibited by each of the parents and whether there has been a history of domestic violence among the members of the family nucleus.
- The ability of each parent to meet the affective, economic and moral needs of the minor, both present and future.
- The history of each parent in the relationship with their children, both before the divorce, separation or dissolution of the consensual relationship, and after it.
- The specific needs of each of the minors whose custody is in dispute.
- The interrelation of each minor, with their parents, their siblings and other members of the family.
- That the decision is not the product of thoughtlessness or duress.
- If the parents have the capacity, availability and firm intention to assume the responsibility of raising the children together.
- The true reasons and objectives for which the parents have requested parental authority and joint custody.
- If the profession, occupation or trade carried out by the parents will prevent the agreement from working effectively.
- If the location and distance of both homes damages the education of the minor.
- The communication that exists between parents and the ability to communicate through direct communication or using alternative mechanisms.
- Any other valid or pertinent criteria that may be considered to guarantee the best welfare of the minor.
Joint Custody
When there are minors involved in a divorce, separation, or dissolution of a consensual relationship, the joint custody of the minors, even against the will of one of the parents concerned, is granted single-parent custody, it will be considered if it is beneficial to the best interests of the minor, unless it is proven otherwise by the court of law.
Under Section 3182 of the PR Law, nothing is to be interpreted to mean that courts must establish joint custody. It is for the child’s best interests when the courts reject a claim if it is proven that one of the parents is not fit to hold it.
If any of the following cases apply, joint custody will not be considered advantageous and favorable to the best interests of minors: PR Laws tit. 1, 3187
- When one of the parents states that they are not interested in having custody of the minors, based on a joint custody plan.
- If one of the parents suffers from a disability or mental deficiency, as determined by a health professional, and it is of an irreversible nature and of such magnitude that it prevents him / her from taking care of the children adequately and guaranteeing their safety and physical, mental, emotional and / or sexual integrity of these.
- When the acts or omissions of one of the parents are detrimental to the children or constitute a pattern of corrupting examples.
- When one of the parents or their spouse or consensual partner has been convicted of acts constituting child abuse.
- When one of the parents is confined in a prison institution.
- When one of the parents has been convicted of acts constituting domestic violence.
- Situations where the father or mother has committed sexual abuse, or any of the sexual crimes towards a minor.
- When one of the parents or their spouse or consensual partner, if any, is addicted to illegal drugs or alcohol.
Following joint custody, if one spouse refuses to accept the judgment and interferes with the other parent’s connection with their children, a court may reverse the decree and provide custody to the other parent.