Sections 2 and 3 of Law No. 233 of 2011, known as the «Act to Protect the Rights of Minors in Custody Proceedings,» defines as public policy in Puerto Rico to guarantee that children of divorced or unmarried couples are entitled to enjoy the care and affection of both parents.
Right to Visit Their Children
What is visitation?
Visitation is defined as the natural right that belong to the parent (father or mother) to contact and have a relationship with their child where custody has been awarded to another by judicial decree.
Can the parties agree on how visitation will be carried out?
Yes. The parties may voluntarily establish how visitation will take place. The parties may agree on a visitation plan that best fits their needs and their specific situation, in particular considering the children’s circumstances. Such agreements may be submitted under oath, either in writing or orally, in family law cases, except proceedings exclusively to decide child support. Depending on the circumstances of the case, such agreements may be submitted in writing using the following form Motion to Stipulate Child Support, Custody, or Parent-Child Relationships («Moción sobre estipulación alimentos, custodia o relaciones filiales«; OAT 1487). The motion must be filed jointly in the Office of the Clerk of the Court.
When does the court intervene to establish visitation?
The Court will intervene to establish the time, manner, and place of visitation when the parties cannot reach an agreement and one of the parties so requests it to the court. Visitation may be established in divorce, parental rights, and custody proceedings (when sole custody is decreed, that is, only one parent is awarded custody) and may also be ordered in a separate action to establish visitation. Visitation may be established by the municipal court in cases for protection orders under Law No. 54 of 1989, known as the “Domestic Abuse Prevention and Intervention Act,» as amended, or under Law No. 246 of 2011, known as the “Child Safety, Well-Being, and Protection Act.”
Likewise, the Court may suspend or limit visitation that has been ordered by the court or agreed upon by the parents if it is in the benefit of protecting the children.
What are the requirements and necessary documents to request the Court to establish visitation?
The requirements and documents are the following:
- File a petition 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 respondent (person against whom the petition is filed)
- a valid photo identification
- serve the respondent
What may be done when a person fails to fulfill the visitation plan?
If a person does not visit with their child or does so partly, in violation of what the court has ordered, a motion may be filed using the form Motion for Contempt («Moción sobre Desacato«; OAT 1460) in the Office of the Clerk of the Court to request a hearing to clarify the alleged violation.
What should the parties do at the hearing?
During the hearing, both parties must appear to present their positions and arguments on the alleged violation and, if necessary, present evidence to such effects.
What is contempt for failing to comply with the visitation plan?
The Court may impose civil or criminal contempt sanctions for not complying with the visitation plan decreed by the court, whether by judgment, resolution, or order. Contempt of court is a means used by the Court to compel compliance with an order issued when the obligated party has ignored or failed to comply, totally or un part, with the order. Contempt should be the exception and not the rule; that is, it must be the last resource used by the court to enforce the order. The court may impose fines or penalties for failure to comply with court orders, in accordance with the Rules of Civil Procedure.
Likewise, the court may warn that future noncompliance with visitation may entail modifications of the visitation plan, custody determinations, or the exercise of parental rights if it is determined that the continued noncompliance is detrimental to the well-being of the children.
Criminal contempt of court entails imprisonment for up to six months, a fine, or both at the court’s discretion.
Legal Proceedings Pertaining to Visitation
There are various proceedings in which a party may request or modify a visitation plan. For this purpose, the Judicial Branch has created several forms that may be used in these types of cases, which are detailed below. It should be noted that each case is particular. Therefore, not all proceedings or the information provided will be as provided in this document.
Petition for Visitation
To commence a visitation proceeding with respect to a minor, the parents, uncles, aunts, or grandparents must file a petition with the court containing all details regarding the manner in which they are interested in carrying out such visitation using the Petition for Visitation form («Demanda de relaciones filiales«; OAT 1440), which must be filed in the Office of the Clerk of the Court. All other parties must be served. To do this, the Summons form (“Emplazamiento”; OAT 1578) may be used. In general, parties that have been served will have 30 days to answer the petition. To answer a petition, a party may use the Answer to Petition for Visitation form («Contestación a la demanda de relaciones filiales«; OAT 1441) and present their arguments regarding visitation that has be requested to the court. The answer to the petition must be filed in the Office of the Clerk of the Court as well.
After receiving the filings related to the petition, the court will hold one or several hearings in which the parties must bring evidence regarding visitation. The Court will determine whether or not to grant the petition, considering the child’s best interests.
Modification of Visitation Decree
The party interested in modifying a visitation plan previously approved by the court through judicial decree, whether by judgment, resolution, or order, must file a document with the court requesting the desired change or modification and detailing the reasons as to why said party believes that the relief sought should be granted. To file this petition, a party may use the Motion Concerning Custody, Visitation, or Parental Rights form («Moción sobre custodia, relaciones filiales o patria potestad«; OAT 1431).
After receiving the petition and other related documents, the Court may hold a hearing to consider the request and will render a decision considering the child’s best interests.
In cases in which the parties agree on how visitation will be conducted and there is no dispute as to this, the parties may file with the court a document detailing the visitation agreement using the Motion to Stipulate Child Support, Custody, or Visitation form («Moción sobre estipulación alimentos, custodia o relaciones filiales«; OAT 1487).
After receiving the petition and other related documents, the court may hold a hearing to consider the stipulation and will render a decision considering the child’s best interests.
In some circumstances, and while other disputes between the parties are pending in court, the court may be asked to establish temporary custody. For this, the Petition for Temporary Custody form («Petición Custodia Provisional«; OAT 1430) may be used.
This is an ex parte petition, which means that only one party files the petition and the court will evaluate whether to grant the petitioner temporary custody. To do so, the court may hold one or several hearings to receive evidence on whether the petition for temporary custody is in the child’s best interests.
In an emergency situation, the petition for custody may be made in a municipal court or the investigations division of the court. The municipal court judge may grant temporary custody, but the person seeking custody must subsequently appear before a superior court judge for a final custody decree.
Contempt of Court
In cases where a party is ordered by a court order to comply with a visitation plan but fails to do so, a motion may be filed alleging such noncompliance. To do this, the Motion for Contempt of Court form («Moción sobre Desacato«; OAT 1460) may be used.
Once the motion is filed in the Office of the Clerk of the Court, a hearing is scheduled to determine whether, in fact, the party failed to comply with the court order. Both parties must appear for said hearing to support their allegations. The parties must also bring evidence of noncompliance with the visitation plan.
Revised: March 2023