Custody refers to physical control, that is, the power to look after them a daily basis. Custody may be exercised by any person, provided it is in the best interest and for the benefit of the child or incapacitated person, unlike parental rights, which only the parents (biological or otherwise) may exercise.

Custody Decree

What is joint custody?
Joint custody is an arrangement through which both parents (biological or otherwise) share custody of their underage or incapacitated children. These arrangements may vary, from living exclusively with one party and only having contact with the other party through frequent visits, to dividing the time that the children will spend with each of the parties, whether by weeks or by months. Each party shall take full and direct responsibility for the upbringing of their underage or incapacitated children when in their custody.

In Puerto Rico, joint custody was established as public policy. Thus, courts must consider this type of arrangement as the first option in cases in which custody is in dispute. However, the most important factor for determining custody will always be the welfare of the underage or incapacitated child. Therefore, courts may award custody to one of the parties or allow joint custody.

Can custody agreements be reached?

Yes. The parties may reach agreements about who will have custody. If there is no dispute, both parties may submit such agreements under oath to the court for consideration and approval. The Court will ensure that the agreements are made freely and voluntarily and are in the best interests of the child. Then, the court will make a decision based on the submitted agreements.

If the parties do not reach an agreement, the court may schedule a hearing, consider the evidence, and determine whether joint or sole custody (in which a single parent has custody) is appropriate. In addition, the court may make all other determinations that are appropriate at law and in the best interests of the child.

Where there are no joint custody agreements, the court will make a temporary custody decree and will refer the parties to the Social Unit of the Family and Minors Division so that, once the parties and their children have been interviewed, it may issue a forensic social report with recommendations on joint custody.

Are custody decrees final?
No. No custody decree is final. If there are changes in the circumstances of the children or the parties, a modification may be requested to the Court.
What does the party requesting custody have to show to be awarded custody?
For the court to award custody, the requesting party must show that he or she is able to meet or advance the best interests and welfare of the underage or incapacitated child.
What are some of the factors that are evaluated to determine custody?

Some factors include:

  • mental health of the parties
  • level of responsibility or moral integrity exhibited
  • whether there is a history of domestic violence between members of the family unit
  • relationship with other relatives
  • ability to meet the emotional, financial, and moral needs of the underage or incapacitated child
  • specific needs of each of the persons whose custody is requested
  • profession or occupation of the requesting party
  • location and distance between the residences of the parties
  • capacity, availability, and commitment to assume responsibility for raising children jointly
  • ability of the parties to communicate with each other

None of these factors is decisive on its own. All factors are evaluated to guarantee the best interests of the underage or incapacitated child.

If you don’t have custody, can you request visitation?
Yes. The party, the father or the mother, or both parents (biological or otherwise) without custody may request visitation. Visitation is a right every non-custodial parent has to freely visit with their children. Visitation rights may be exercised through visits for hours or days and may include spending the night with the non-custodial parent.
How is custody request with the court?

When there is an agreement between the parties, custody may be requested by joint petition. When there is a dispute between the parties, custody is requested by filing a complaint.

If a case has been previously filed in the Family Relations Division other than a child support case, a motion for custody may be filed as part of that case. Otherwise, the custody petition or complaint must be filed with the Office of the Clerk of the Court. Depending on the circumstances of the case, one of the following forms may be used:

  • Motion for Custody, Visitation, or Parental Rights (OAT 1431) (“Moción sobre Custodia, Relaciones Filiales o Patria Potestas”)
  • Motion for Stipulation, Child Support, Custody, Visitation (OAT 1487) (“Moción sobre Estipulación, Alimentos, Custodia, Relaciones Filiales”)
What are the requirements and necessary documents to file for custody with the Court?

The requirements and documents are the following:

  • file a complaint with the Office of the Clerk of the Court that includes:
    • the residence/domicile of the minor in Puerto Rico
    • $90.00 in internal revenue stamps
    • the birth certificate of the minor
    • the residential address of the defendant/respondent
    • a valid photo identification
  • serving the defendant/respondent
What is temporary custody and how do I request it?
Temporary custody refers to custody that is awarded for a specific period. It can be requested ex parte, that is, by both parents (biological or otherwise) if there is an agreement, or by only one party if the other parent has died or has been deprived of parental rights.

If a case has been previous filed in the Family Relations Division, on matters such as divorce, parental rights, custody, visitation, etc., except child support, a motion for temporary custody may be filed as part of that case.

If it is an emergency, such as a situation of gender violence or child abuse, the request for custody may be filed in municipal court. The municipal court judge may award temporary custody in one case, but the person requesting emergency custody must later appear before a superior court judge for a final custody decree. Ordinarily, emergency custody is granted for a specific period to address the emergency under consideration.

What are the requirements and necessary documents for filing for temporary custody with the court?

The requirements and documents are the following:

  • a petition filed under oath by the persons requesting custody. In the event that one of the parties agrees to relinquish custody, said person must also swear an oath to be filed with the petition
    • Depending on the circumstances of the case, the Petition for Temporary Custody may be used
  • $78.00 in internal revenue stamps
  • two (2) copies of the birth certificate of the minor
  • two (2) copies of the death certificate of the parties, if applicable
  • a valid photo identification


Revised: April 2022