In this article, I would like to draw attention to the legal regulation of this area, especially after the dissolution of marriage. It is important for all of us to understand what rights and obligations both parents of a child have even after the dissolution of marriage.
Parental responsibilities, their exercise and regulation raise many questions on which parents do not always agree. Therefore, today we will look at the main principles of parental responsibilities enshrined in Portuguese law, how they are exercised in and out of marriage, as well as key aspects of their regulation, such as the residence of minors and the right to communication, for example. This article is written on the basis of the Portuguese Civil Code Código Civil (Decreto-Lei n.º 47344).
So what are parental responsibilities? Not so long ago, parental responsibilities (responsabilidades parentais) were called parental authority (poder paternal). The change of name was due to the fact that the legislators wanted to emphasize that it was not a matter of authority, but rather a duty, a responsibility of parents towards their children. In other words, we can say that parental authority must always be exercised in the interest of the child. Thus, parental responsibilities are the powers and duties of parents towards their children, which are usually exercised until the latter attain majority or emancipation, and are personal in nature, since they are personal, individual and irrevocable legal positions.
What is the duty to help (dever de auxílio)? Persons with parental responsibility have a duty to help minors and to take care of their safety and health. This duty includes many different aspects, such as providing warmth and care, protection from strangers, medical examinations, etc.
What is a duty of care (dever de assistência)? Continuing the theme of parental responsibilities, the law also mentions the duty of care for the child and the duty to provide expenses related to safety, health and education. As the child grows older and thus becomes more independent, the scope of these duties decreases, i.e., the duty to assist and to provide expenses is phased out.
Can parents use their children's money? As part of their parental responsibilities, parents may use their children's money, especially income generated by the children's property (e.g. rent from inherited property), as long as it is used to cover the costs of maintenance, safety, health and education and, within reasonable limits, to meet the other necessities of life of the family.
Is there a duty to support your child after the age of 18? The duty of care can extend beyond the age of majority. The duty of care extends to cases where children have not yet completed their education. For example, it is common for a young person in Portugal to enter higher education only when they reach the age of 18, but their parents are still obliged to bear the costs within their economic and financial capacity. This is because the law realizes that children have economic need and dependency in such circumstances.
What is the duty of education? Strictly speaking, the duty of education has two components:
- The first consists in providing children with the necessary care, instruction and guidance for their physical, intellectual and moral development. This component includes ethical and moral rules of behavior so that children can act in society, that is, accompanying them with the physical and intellectual abilities necessary for this purpose. Of course, this component diminishes over time and ends by adulthood;
- The other component, investment in academic and vocational training, involves parents helping their children prepare for school so that they can pursue professional careers.
Can parents choose their child's religion? The law states that, as part of parental responsibilities, parents jointly decide on the religious upbringing of their children up to the age of 16. Thus, until this age, parents have the right to decide on the religious upbringing of their children. After that, the child can make his/her own decision on this issue.
What is the duty of custody and vigilance? The duty of custody means that parents must not abandon their children, nor can spouses (even ex-spouses) take children away from each other without an agreement or court order. But, even if, for one reason or another, children are taken away from their parents, there is a procedural mechanism for their return, called judicial transfer of the child (entrega judicial de criança). Parents also have a duty of supervision, which involves monitoring the child's relations with third parties. This duty has certain limitations, which include respecting the autonomy of the child and taking his or her opinion into account.
Can parents prohibit their child from spending time with grandparents? According to Portuguese legislation, parents can only deprive a child of contact with siblings, ascendants, including grandparents, if there is a valid reason (legally justified and secured by a court decision). Therefore, the general rule is no. To the same extent, courts recognize the right to live with people who are not blood relatives but who play or have played an important emotional role in the child's life.
What is the obligation to represent a child? Representation is a way to compensate for a minor's inability to exercise his or her rights. Parents can represent their children, except in matters of a strictly personal nature, actions that the child can perform personally and freely, and actions that parents are prohibited from performing, such as in relation to property that they do not manage and that has been transferred to a third party. In addition, the Public Prosecutor's Office (Ministério Público) can (and in practice does) represent minors in court, filing lawsuits on their behalf, requesting actions to regulate and protect their rights and using any judicial means necessary to protect their rights and interests.
Parental responsibilities and children's property. Parents are also responsible for managing their children's property, which they must handle with the same care as their own. What acts of management cannot be done by parents? There are estates that are not the responsibility of parents to manage:
- A child's property derived from an inheritance from which the parents have been removed by alienation or disinheritance;
- property that has passed to the child by gift or inheritance, against the will of the parents;
- Property left or gifted to a child not under the will of the parents;
- Property acquired by a child over the age of sixteen as a result of his or her labor.
In any case, any action related to the above-mentioned property requires the authorization of the Public Prosecutor's Office, which, again, acts here as a representative of the minor's interests. There is a clearly defined list of actions that parents may not do under any circumstances without the consent of the Public Prosecutor's Office:
- Alienation or encumbrance of property, except in the case of alienation of things subject to loss or deterioration;
- Voting at general meetings of companies on resolutions leading to their liquidation;
- The acquisition of a commercial or industrial business or the continued operation of a business that the child inherited or was given as a gift;
- Entering into a general partnership, limited liability partnership, or unit partnership;
- Contracting for currency obligations or obligations arising from any title transferred by endorsement;
- Guaranteeing or assuming the debts of others;
- Obtaining Loans;
- Contracting for obligations, the fulfillment of which comes after reaching the age of majority;
- Assignment of credit rights;
- Disinheritance;
- Acceptance of inheritance, gift or bequest with encumbrance or agreement for out-of-court partition;
- Leasing the property for more than six years;
- An agreement or demand in court for the division of common property or the liquidation and division of company assets;
- Negotiating a settlement or compromise with respect to the actions mentioned in the preceding paragraphs.
Parental responsibilities during marriage. As a general rule, when parents are married, mutual agreement exercises parental responsibilities. However, in the absence of such an agreement and in respect of matters of particular importance, either parent may apply to the court to resolve the dispute, where, in the main, this is by way of conciliation. If this is not possible, the court will listen to the child and make a decision if it considers it possible. It should also be noted that in matters of children's daily life. It is understood that if one parent performs acts that are part of parental duties, it is assumed that he or she is acting in agreement with the other. All this is fully applicable to children born in a common-law relationship, as long as the relationship lasts.
What if one parent is incapacitated? There are cases where, although the parents are married, one parent is unable to fulfill parental responsibilities due to absence, incapacity, or other court-ordered impediments (e.g., incarceration), and in these circumstances, only the other parent can fulfill parental responsibilities.
What happens to parental responsibilities in case of divorce or legal separation? In case of divorce, separation, annulment or invalidation of marriage, the fulfillment of parental responsibilities is always determined by a court decision or by a parental agreement duly approved by the court or the Registry Office. For example, in the case of a divorce by mutual consent, the existence of such an agreement is one of the requirements for filing an application with the civil registry office (conservatória). Otherwise, it will have to be filed with the court (tribunal) that decides the matter.
Regulation of parental responsibilities (regulação das responsabilidades parentais). A claim (requierimento) for regulation of parental responsibilities arises when parents who are divorced, separated or simply have a child or children in common cannot agree on how to regulate the parental responsibilities of their children. Generally speaking, it is a common-civilized practice in Portuguese divorce to fix some kind of agreement in the legal field. This does not mean that it can be renegotiated if circumstances change, but it does mean that both parties are protected by the law and clearly know the boundaries.
The regulation of parental fulfillment involves:
- Determining the person with whom the child will live and allocating parental responsibilities for the most important issues;
- Establishment of a personal communication regime with the parent to whom the child has not been transferred (example: if the child is in the care of the mother, a period of communication with the father should be provided);
- Determining the amount of child support to be paid by the noncustodial parent and the form of payment.
The court must make a determination consistent with the best interests of the child, including maintaining a close relationship with both parents, encouraging and making agreements or decisions that promote ample opportunities for contact with both parents. This includes sharing responsibilities between them.
Generally, parental responsibilities are shared on the following points:
- For matters of particular importance in the life of the child (e.g., the choice between enrolment in a public or private school, the child's employment and voluntary termination of pregnancy), their implementation is always joint, which means that the spouses must agree on these matters. In cases of extreme necessity (e.g., a risky surgical operation on which the life of the child depends and one spouse cannot contact the other), a unilateral decision can be made;
- For matters of daily living, such as making decisions about a child's nutrition, the decision is unilateral and rests with the parent with whom the child lives or the parent with whom the child is with at the time.
It should be noted that the parent with whom the child lives temporarily should not contradict the most significant educational instructions of the parent with whom the child remains permanently: for example, the mother tells the child not to go to bed later than 10:30 p.m., and the father should respect this advice when he is with the child.
With whom should the child live? The law tells us that the primary criterion for determining this is the best interests of the child, which are weighed and assessed on a case-by-case basis. This depends on a range of circumstances relating to both the child and the parents. Various models are used, including:
- Living in the home of a parent;
- Alternation of residence (the child lives some time in the mother's house, and another time in the father's house), but only in case of compliance with the educational regime of the schoolchild, respectively, the necessary condition is residence in the same city (this norm does not apply to preschool children);
- The child stays in a shared family home and the parents live there alternately (this model is rarely used in Portugal);
- In exceptional cases, the place of residence may be established with someone other than the parents (this model is regulated by special provisions of the instruction Mecanismos de promoção dos direitos de crianças e jovens - entrega a terceira pessoa. A child may be transferred to a third party in the following cases: when, by agreement between the parents and a person, whether relative or not, the child moves in with them, or by court order in situations where the parents are unable to provide basic aspects of the children's life, such as safety, health, education or moral upbringing.
In situations where the transfer to a third party concerns a child over the age of 12, the child must necessarily be aware of the agreement and have the opportunity to comment on it. In addition to specifying the parents, the child and, if possible, the person to whom the child may be transferred. The statement of claim must state the reasons justifying the request, namely the reasons why the child can not live with his or her parents. When a child is placed with a third person, that person has the powers and duties necessary for the proper performance of his or her duties; the court decides what powers and duties will be exercised by the parents and how they should be exercised (e.g., child maintenance and contact information).
How do judges decide with whom a child should live? There are no single criteria that answer this question, but some facts from practice can be given:
- Preferred primary figure: the judge will try to find out who is the referent figure, the center of attention for this child;
- The principle of not separating siblings is observed: one sibling should not be placed with the father and the other with the mother;
- The rule of favoring a parent of the same sex as the child is used primarily with adolescents and young adults;
- Maintaining the status quo: avoiding abrupt changes in the lives of juveniles.
How are visitation rights determined? There are two standard models for regulating visitation rights of the non-residential parent:
- Free regime: the father/mother may visit the child whenever they wish, without prejudice to the child's school duties and recreation time, provided they notify the mother/father in advance;
- Specifying the frequency, duration and location of visits, as well as who is responsible for transporting the child and who bears the cost of travel.
What should I do if my visitation rights are not respected? Visitation rights are often violated by parents. Going to court again, as there are certain response/sanction mechanisms in the law to address these violations, such as:
- Order to pay a fine (Condenação ao pagamento de uma multa);
- Order for the payment of compensation in favor of the child, the applicant parent or both (Condenação ao pagamento de uma indemnização a favor da criança, do progenitor requerente ou de ambos);
- Criminalization of the crime of child abduction (in Portugal, equated to kidnapping);
- Change in the way parental responsibilities are exercised (court review).
Are there financial obligations if a child lives with the other parent? The spouse with whom the child does not live is obligated to pay child support, mainly to help with living expenses, housing, clothing, education, and other expenses. If the parents cannot agree, the court determines the amount of child support on a case-by-case basis on its own. To compel payment, the law provides for the possibility of special enforcement proceedings for alimony (execução especial por alimentos), in which the offender's employer deducts a portion of the other parent's salary directly for the child's support. Criminal liability may also be envisaged, as the Portuguese law defines the crime of breach of maintenance obligations.
If the court has doubts (based on a petition filed by one of the parents) that the other parent, who has been awarded the right to live with the child, may be negligent or not fully exercising his or her parental duties, the CPCJ (Comissão Proteção Crianças e Jovens), the Commission for the Protection of Children and Adolescents, is involved in the process as a supervisory organization. It has the obligation to monitor the proper fulfillment of parental responsibilities:
- Periodic visits to the child's home to assess both general living conditions and hygiene/nutrition, for example;
- monitoring of the child's attendance at the educational institution, as well as the child's academic progress;
- monitoring the child's physical and mental health, monitoring the child's attendance at preventive and compulsory medical examinations.
By the way, about all the parental responsibilities remaining or arising after divorce, the Portuguese Ministry of Justice has produced a whole practical guide Guia Prático do Divórcio e das Responsabilidades Parentais, it's in Portuguese, but I think an online translator would be quite helpful.
Let's move on to the practical side - how to file a lawsuit for registration of parental rights and obligations (let's remind again how it sounds in Portuguese - Requerimento de Regulação do Exercício das Responsabilidades Parentais Dos Seus Filhos Menores). As I wrote above, for the Portuguese, this is the norm in divorce. For a painless settlement, the separating spouses can draw up a Parental Rights and Responsibilities Settlement Agreement on their own and submit it to the Registry Office. Thus, they will be able to divorce without involving the court. The practice is that if the parents agree on all aspects of the regime to be established, they can submit the agreement in writing for homologation to any civil registry office or family court (Juízo de Família e Menores). Only after homologation does this agreement become effective. Otherwise, they will only have to apply for divorce to the court, which will lead them to this agreement anyway, whether they want it or not. Generally, territorial jurisdiction is established on the basis of the child's place of residence at the time of filing.
The presence of the children themselves in court is compulsory only when they reach the age of 12, but in practice the judge also wants to hear the views of younger children. The procedure of listening to the children takes place in a quiet environment in a separate room in the presence of a social worker. Since the prosecutor is on the side of the children's interests, it is the prosecutor who speaks to the child and then gives the judge his or her position on what has been heard.
The procedure of the trial itself, which at first is not really a trial, is quite simple. The first "meeting" is called a parent-teacher conference. Its purpose is for the parents, not without the help of the judge, of course, to reach a pre-trial agreement. The court hears from all parties, the prosecutor in terms of protecting the children's interests in this hearing, and offers its version of a parenting settlement agreement. If the parents agree, the judge makes a decision, a paper is issued (Ata de Conferência), a kind of transcript of the meeting, in the final part of which the decision itself is announced (Sentença), that the parties have agreed during the conference. If no agreement is reached, the process moves to the stage of judicial debate, where the parties will present their evidence and fight for their rights; even a judge cannot force the parties to sign a peace agreement at this stage.
The action can be filed by one of the parents, alone or through a lawyer, as well as by the Public Prosecutor's Office if it suspects that the child's rights are being violated. And, attention, you don't have to be a Portuguese citizen to register your parental rights: you can file a lawsuit in court even if the plaintiff and the defendant are not exactly in a legal status in Portugal (of course, you should have the basic NIF and NISS numbers anyway for identification purposes).
I hope this article was helpful to you! Civilizing rights and responsibilities is the surest step towards children! Traditionally, I wish everyone good luck and patience! And I hasten to remind you, who besides this article on our portal has something to read - we have already released a huge collection of articles on all occasions of life in Portugal. We will continue to share useful information with you, do not miss it! Well, for more serious practical questions you may need contacts of our specialists in different fields: lawyer, exchange of cryptocurrencies, specialists in buying real estate in Portugal - all gathered here in one place for you!
