Parental rights, or patria potestas, refers to the rights and duties that parents (biological or otherwise) have over their underage children and said children’s property, in order to ensure their education, upbringing, and health, among others.

Through parental rights, parents make the necessary decisions for the well-being of their children. The purpose is to protect children who lack capacity to make decisions about their property and their person.

The Wellbeing of Children

What duties and rights under parental rights?

Parents with parental rights over their children are required to exercise such authority responsibly by ensuring their well-being and best interest. This includes, but is not limited to:

  • watching over them, keeping them in their company, or living in the same household
  • feeding them and providing them with what they need for their overall development and education
  • instilling values and good social habits; respect for themselves and for the community
  • educating, correcting, and disciplining them, based on their age and intellectual and emotional maturity, and applying discipline in moderation
  • legally representing them
  • managing their property with the same diligence they would exhibit in the care of their own property and affairs
  • caring for their physical and mental health
  • protecting them from physical and moral danger
  • appointing a guardian or requesting the appointment of a guardian ad litem, if necessary, for court proceedings
Who has parental rights?

Parental rights is usually exercised by both parents jointly, sharing equally the rights and responsibilities it entails. This does not mean that both parents need to explicitly authorize each decision involving their children, but rather that both have the same authority and responsibility to make decisions that promote their children’s wellbeing.

There are circumstances in which parental right cannot be exercised jointly. Such circumstances occur when one of the parents:

  • is dead or presumed dead.
  • has been declared legally absent by a court because their whereabouts are unknown.
  • has been declared legally incapacitated by a court and thus cannot take charge of the child.
  • is the only person who has legally recognized or adopted the child or has requested parental rights.
  • is legally barred or the manner and conditions of its exercise has been limited by a court pursuant to law as part of a judicial proceeding.

On the other hand, one parent alone may exercise parental rights in case of an emergency in which the child’s life or cognitive, mental, or physical abilities are compromised or in jeopardy. In these cases, the consent of any of parent with parental rights will suffice to intervene with the child.

Until when may parental rights be exercised?

Parental right may be exercised until one of the following circumstances occurs:

  • either of the parents or the child is declared or presumed dead
  • the child is adopted (because once the adoption is decreed and becomes final and unappealable, the adoptee is considered the child of the adopting parent, with all the rights, duties, and obligations in law, such as parental rights)
  • irreversible termination of parental rights is by the court (in a judicial proceeding in where the State has proven, with clear and convincing evidence, any of the grounds for termination established by law)
  • the child is emancipated (by reaching legal age, by parental consent, or by authorization of the court)

The above grounds are considered irreversible. This means that there is no way to restore or regain the exercise of parental rights, whether because there is no reason to do so or because the Court has so decided. However, the law recognizes that, if a child reaches legal age of and for whatever reason is incapable of making decisions about their person or property, the parents may request that parental rights be extended beyond the age of majority. This is known as “extended parental rights.”

What is the extended or restored parental rights?

Sometimes, if a minor is incapable of acting on their own behalf when they reach legal age because of a condition affecting their cognitive or emotional skills, the parents (biological or otherwise) may request that their parental rights be extended beyond the age of majority. This is known as “extended parental rights.”

In such cases, the Court will first determine whether it is appropriate to declare the child legally incapable and then, whether it will authorize the extension of parental rights for either or both parents.

Regarding children who have reached legal age and were no longer living with their parents at the time of being declared legally incapacitated, the parents may ask the Court to restore their parental rights. In such cases, the child may not have married or had children.

When does extended or restored parental rights end?

The extended or restored parental rights end when any of the following circumstances occurs:

  • the parents die or are declared legally incapacitated, or the child dies
  • the child is rehabilitated
  • as decreed by the court (in a judicial proceeding where  the State has shown, with clear and convincing evidence, any of the ground for termination established by law)
In which judicial proceedings may parental rights be decided?

Parental rights may be at issue in different judicial proceedings and under several statutes. Thus, depending on the specific circumstances of the case, the judge has the discretion to decide matters related to parental rights in accordance with the evidence submitted, the applicable laws, and the child’s best interest.

For example, in a divorce proceeding, the Court may rule that the parental rights over underage, unemancipated children falls to both parties jointly. Other family affairs proceedings that may involve deciding parental rights include marriage (if one of the parties is a minor), adoption, emancipation, filiation, and custody, among others.

What happens when the parents do not agree on an issue that, by law, requires the consent of all parties with parental rights?

If there is a major disagreement between the parents, they must appear in court before a judge who will hold a hearing and make a decision. If the parties frequently request the court’s intervention in order to make decisions on matters concerning parental rights, or if there are any other grounds that prevent the joint and effective exercise of parental rights, the Court may:

  • assign total or partial parental rights to one of the parents
  • divide the parental rights that cause the most controversy among the parties
  • allow reasonable time for the parties to submit to an alternative dispute resolution process or to seek appropriate assistance to reach agreements on the joint upbringing of their child
Can a parent's parental rights be restricted, suspended, or terminated?

Yes, but only by a court ruling. In cases in which it is shown that a parent is failing to fulfill their duty to exercise their parental rights responsibly and for the child’s benefit, the court may issue a ruling on the matter. After considering the parties’ arguments and the evidence submitted, a judge may limit a parent’s exercise of parental rights under the conditions provided by law.

The consequences of each of these court rulings (restriction, suspension, or termination) will depend on the law under which the claim is heard. It should be noted that a parent’s rights regarding their children are of constitutional rank. This means that the only way in which this right may be limited is guaranteeing the parent the due process of law and where such right will be permanently terminated, the State must provide clear and convincing evidence that this decision is the least burdensome and is in the child’s best interest.

What does clear and convincing evidence mean?

It is the standard of proof that a judge must consider when making a decision. In order to restrict, suspend, or terminate a person’s parental rights over their children, given the importance of family relations, the standard of proof is stricter than in any other civil proceeding. Therefore, a party who claims before the court that a parent’s exercise of their parental rights should be limited must bring evidence that a judge will find to be clear and convincing.

Revised: March 2023