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Parental responsibility - Portugal

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TABLE OF CONTENTS

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility? 1.
2. As a general rule, who has the parental responsibility over a child? 2.
3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place? 3.
4. If the parents divorce or split up, how is the question of parental responsibility determined for the future? 4.
5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding? 5.
6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court? 6.
7. If the parents go to court, what issues can the judge decide upon relating to the child? 7.
8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent? 8.
9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice? 9.
10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application? 10.
11. Which procedure applies in these cases? Is an emergency procedure available? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision on parental responsibility? 13.
14. In certain cases, it may be necessary to apply to a court or another authority to have a decision on parental responsibility enforced. Which procedure applies in such cases? 14.
15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in Portugal? Which procedure applies in these cases? 15.
16. To which court should I turn in Portugal to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases? 16.
17. Which is the applicable law in a proceeding on parental responsibility where the child or the parties do not live in Portugal or are of different nationalities? 17.

 

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

The concept of “parental responsibility” is not yet enshrined in Portuguese law. The concept used in Portuguese law is “paternal authority”.

As specified by the law, this concerns powers and duties of a personal nature (power of control and representation; duty of respect, assistance and education; power/duty of custody) and of a property-related nature (power of administration over the property of children; duty of assistance).

2. As a general rule, who has the parental responsibility over a child?

It is the parents who, as a general rule, hold and exercise paternal authority over their children.

3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

Exercise of paternal authority can be limited or prohibited to the extent that the children are entrusted to a third person (guardian) or an assistance establishment.

Prohibition occurs in the following cases:

  1. confirmed conviction for a crime to which the law assigns this effect;
  2. declaration of incapacity due to a mental disorder;
  3. absence, from the time of appointment of a provisional guardian (temporary representative who administers the property of the person who has disappeared without giving any indication of his or her whereabouts).

Children may also be placed in the care of a third person or an assistance establishment in cases where the parents are at fault for infringing their duties towards their children, resulting in serious harm to the latter, or where, on account of inexperience, illness, absence or other reasons, they do not appear to be able to fulfil the duty of care to their children.

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It is compulsory to appoint a guardian:

  1. if the parents have died;
  2. if they have been prohibited from exercising paternal authority over the child;
  3. if they have been prevented de facto for more than six months from exercising paternal authority;
  4. if they are not known.

Except for certain differences established by the law, third persons entrusted with the custody of minor children have the same rights and duties as the parents.

4. If the parents divorce or split up, how is the question of parental responsibility determined for the future?

In the event of divorce or separation, paternal authority is determined by a court judgment or decision of the registrar of births, marriages and deaths.

The judgment may be an approval judgment, i.e. confirming an agreement between the parents on the exercise of paternal authority, or a judgment of merits containing a compulsory decision on the exercise of this authority.

The registrar adopts a decision approving the agreement between the parents.

These decisions are delivered in divorce or legal separation proceedings or in separate proceedings to decide on the exercise of paternal authority. The registry office is only involved in separation and divorce proceedings by mutual consent.

5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

The agreement to be concluded must carefully protect the interests of the child and regulate the various rights and duties involved in the exercise of paternal authority. If this is submitted together with an application for approval, no particular form is required.

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This agreement must be approved by the judge of the competent court or by the registrar of births, marriages and deaths (the latter, as has been indicated, will intervene only in separation and divorce proceedings by mutual consent) and must be attached to the application (for separation, divorce or regulation of the exercise of paternal authority).

This agreement may also be concluded during the attempt at reconciliation presided over by the judge. In this case, it will be recorded in the minutes and approved by the judge.

This attempt at reconciliation is compulsory in contested proceedings for divorce and separation and in proceedings to decide on the exercise of paternal authority.

With regard to proceedings before the registrar, the public prosecution service at the court of first instance which has jurisdiction in the judicial district in which the registry office is situated must give an opinion on the agreement before the final examination is carried out.

Approval must be refused whenever the agreement is not in the interests of the child, including that of maintaining a close relationship with the non-resident parent.

6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

It is always necessary to obtain court approval for any agreement entered into by the parents (whether this is spontaneous or results from a mediation process) , except with regard to the aforementioned participation of the registry office.

During the stage at which the areas of disagreement and reconciliation between the parents are examined, there is the alternative of resorting to mediation through the Family Mediation Service, which was set up by the Ministry of Justice in 1997, or through Family Mediation Services working with some municipalities.

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It is also possible to have recourse to the Association of Conflict Mediators.

At any stage of the proceedings and whenever this is deemed appropriate, the judge may, on his own initiative and with the consent or on the application of the persons involved, order participation by public or private mediation services. He will approve the agreement secured through mediation if it protects the interests of the child.

7. If the parents go to court, what issues can the judge decide upon relating to the child?

In general and regardless of who requests the intervention, the court may, in relation to the child and within the area with which we are concerned:

  1. order guardianship and administration of property;
  2. appoint a person to conduct transactions on behalf of the minor and also appoint a general guardian to represent the minor, subject to paternal authority in non-judicial matters;
  3. determine the exercise of paternal authority (i.e. decide on the arrangements for the child, on the maintenance due to the latter and the method of paying maintenance and also on the rules which will define the contact to be maintained with the non-residential parent, bearing in mind that the existence of a close relationship must always be ensured) and hear issues relating to this matter;
  4. assess the maintenance due to minors and prepare and decide on the enforcement of maintenance;
  5. order wardship proceedings in respect of minors;
  6. authorise the legal representative of minors to carry out certain acts, confirm those which have been carried out without authorisation and take steps with regard to the acceptance of gratuities;
  7. decide on the security which the parents must lodge in favour of minor children;
  8. decree the total or partial prohibition of, and establish the limits to, the exercise of paternal authority;
  9. decide on the forename and surname of the minor in the event of disagreement between the parents;
  10. in the case of guardianship or administration of property, determine the remuneration of the guardian or administrator, hear the excusal, discharge or removal proceedings for the guardian, administrator or voting member of the family council, request and decide on the accounts, authorise the replacement of the legal mortgage and determine the reinforcement and substitution of the security lodged and appoint a special guardian to represent the minor in non-judicial matters;
  11. appoint a special guardian to represent the minor in any guardianship proceedings;
  12. decide on the reinforcement and substitution of the security lodged in favour of minor children;
  13. request and decide on the accounts which the parents must present;
  14. hear any other matters in the proceedings referred to above.

In the absence of agreement between the parents on issues of particular importance, the court must decide on these, on application by either parent and after an attempt at reconciliation and after hearing the views of the minor. In order to be heard, the child must be over 14 and the circumstances must not be such that it is inadvisable to hear the child's views.

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The following are some of the issues of particular importance: the name of the child, his or her education (particularly religious education) , the disposal of property, the rejection of inheritances, the contracting of loans and the acquisition of positions in commercial companies.

In the case of divorced or separated parents, the judge must decide whether paternal authority will be exercised singly or jointly, who will be the main carer, what the contact arrangements will be for the non-resident parent and what the amount and form of the maintenance will be (if any).

8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

With regard to acts of particular importance or for which the law expressly requires the consent of both parents, the non-resident parent must be consulted and give their consent to the act. Furthermore, the parent who does not exercise paternal authority has the power to oversee the education and living conditions of the child.

In addition, the parents may agree that certain issues be resolved by agreement between them or that the administration of the child’s property be assumed by the parent who has been given custody of the minor.

9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

In practice, in this situation, paternal authority is exercised jointly by both parents, who decide on matters affecting the life of the child under identical conditions to those which applied during the marriage, except for the major difference that the minor can live with only one of the parents.

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In this context, the position of the parents with regard to the child does not change in legal terms upon divorce or separation.

10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

In Portugal, the Family Proceedings Courts have jurisdiction in this area.

There are Family Proceedings Courts (called Family and Children’s Courts) in Aveiro, Barreiro, Braga, Cascais, Coimbra, Faro, Funchal, Lisbon, Loures, Ponta Delgada, Portimão, Oporto, Setúbal, Seixal, Sintra and Vila Franca de Xira.

Outside the areas covered by the jurisdiction of these courts, the district courts can hear cases relating to parental responsibility.

However, when a divorce or legal separation action is pending, the civil guardianship arrangements governing the exercise of paternal authority, the payment of maintenance and the prohibition of paternal authority are linked to this action.

If no divorce or legal separation action is pending, an initial application must be submitted which does not need to be set out in the form of pleadings in which the parties are identified, the facts described, a request made and the evidence submitted.

This application may be signed by the parents, as it is not compulsory to instruct a lawyer except at the appeal stage. The only essential documents at this initial stage are the birth certificates of minor children and, if the parents are married, their marriage certificate.

For further information, see the page on the jurisdiction of the courts.

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11. Which procedure applies in these cases? Is an emergency procedure available?

Voluntary jurisdiction rules apply to these proceedings, which is why the court may freely investigate the facts, collect evidence, order inquiries and gather the information regarded as appropriate. Only evidence which the judge considers necessary is admitted.

Judgments are delivered within 15 days of the submission of the relevant application to the judge.

In the proceedings, the court is not subject to criteria of strict legality but in each case must adopt the solution which it deems most appropriate. Therefore, when called to intervene in the determination of paternal authority, it must be guided by full and exclusive consideration of the minor’s interests.

However, the voluntary nature of the jurisdiction does not release the court from the requirement to base its decisions on fact and law.

In proceedings of this kind, decisions may be changed, without prejudice to the effects already produced, on the basis of supervening circumstances which justify the change. Supervening circumstances are those occurring after the decision and those occurring before the decision which have not been raised owing to lack of knowledge or other substantial grounds.

The parties are entitled to hear the information, reports, examinations and opinions disclosed in the proceedings and may request clarifications, submit further evidence or request the gathering of any information which they consider necessary. The judge will reject, in a ruling against which there is no appeal, those requests which are pointless, impossible to carry out or manifestly intended to delay matters. The hearing of both sides with regard to the evidence obtained by the means described is guaranteed.

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During court holidays, civil guardianship proceedings which, if delayed, may cause prejudice to the interests of the minor continue.

At any stage of the proceedings and whenever it is considered appropriate, the court may provisionally decide on those matters which must ultimately be resolved and also order any steps which are essential to ensure the effective enforcement of the decision. Decisions taken definitively may also be provisionally changed. To this end, the court will carry out the brief investigations which it considers appropriate.

12. Can I obtain legal aid to cover the costs of the procedure?

Yes, the legal aid scheme applies in all courts, whatever the form of proceedings.

For further information, see the “Legal aid – Portugal” page.

13. Is it possible to appeal against a decision on parental responsibility?

Yes. Within the general terms of the civil process, one of the parents or the public prosecution service may submit an appeal. Decisions delivered according to the criteria of appropriateness and expediency are not open to appeal to the Supreme Court of Justice.

14. In certain cases, it may be necessary to apply to a court or another authority to have a decision on parental responsibility enforced. Which procedure applies in such cases?

If, in the case of a minor, one of the parents does not comply with what has been agreed or decided, the other parent may ask the court to take the necessary steps to enforce compliance and to sentence the parent guilty of this non-compliance to pay a fine and compensation in favour of the minor and the applicant, or both.

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Once an application has been made or joined to the proceedings, the judge will invite the parents to a meeting or will order the respondent to be notified so that he or she may make whatever representations he or she considers appropriate. At the meeting, the parents may agree to alteration of the arrangements for the exercise of paternal authority, bearing in mind the interests of the minor. If a meeting has not been held or when the parents cannot agree during the meeting, the judge will order a brief investigation to be carried out, together with any other steps which he considers necessary, and will ultimately take a decision. If a parent has been sentenced to pay a fine and this is not paid within ten days, a certificate of the proceedings will be produced so that it can be submitted to the court having jurisdiction to enforce the fine.

The process in question is incidental to the main proceedings and results from an application by a parent or the public prosecution service.

When the person legally obliged to pay maintenance does not pay the amounts due within ten days of the due date, the following will occur:

  1. If this involves a public official, the respective amounts will be deducted from their salary on a request from the court sent to the competent body.
  2. If this involves an employee or salaried worker, the amounts will be deducted from their wage or salary. For this purpose, the respective employer will be notified and will be designated as the approved depositary.
  3. If this involves a person in receipt of profits, pensions, subsidies, commission payments, percentages, fees, gratuities, shared earnings or similar income, the deduction will be made from these amounts when they are paid or credited, with the necessary requests or notifications being made for this purpose and with the notified bodies being designated as the approved depositaries.

The amounts deducted will also include the maintenance which may be about to fall due and will be paid direct to the maintenance creditor.

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15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in Portugal? Which procedure applies in these cases?

To answer this question, it is necessary to distinguish between those situations in which this decision has been delivered during proceedings for the divorce, legal separation or marriage annulment of the parents and other situations.

In the first case, Regulation (EC) No 1347/2000 of 29 May 2000 applies, according to which decisions delivered in another Member State, except for Denmark, are recognised in Portugal without needing to resort to any particular procedure.

Therefore, decisions delivered in a Member State on the exercise of paternal authority relating to a joint child of the couple and which are enforceable and have been notified in that State are enforced in Portugal as soon as they have been declared enforceable in this State on application by any interested party.

The few grounds for non-recognition of such decisions are set out in that Regulation.

In situations not covered by the above Regulation and for matters involving the custody of children, the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (which is binding on the majority of the EU Member States) applies.

Under this international instrument, any person who has obtained in a Contracting State a decision on the custody of a minor and who wishes to obtain in another Contracting State recognition or enforcement of this decision may make an application to the Instituto de Reinserção Social [Social Reintegration Institute]. This application must be accompanied by: a) a document authorising the Portuguese State to act on behalf of the applicant or to designate another representative for this purpose; b) a copy of the decision which satisfies the necessary conditions of authenticity; c) in the case of a decision given in the absence of the respondent or his legal representative, a document which establishes that the respondent was duly served with the document which instituted the proceedings or with an equivalent document; d) if necessary, any document which establishes that, in accordance with the law of the State of origin, the decision is enforceable; e) if possible, a statement indicating the likely whereabouts of the child in the State and proposals as to how the custody of the child should be restored.

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In situations not covered by conventions and special rules, the special foreign judgment review process applies.

In this process, the document recording the decision to be reviewed is submitted with the application and the opposing party must within 15 days make its representations. The applicant may respond within 10 days of the notification of submission of the response. Once the parties have entered pleadings and the steps have been taken that the "review judge" (relator) regards as being essential, all the documents are provided, for the purpose of submission, to the parties and the public prosecution service, each for 15 days.

In order for the judgment to be confirmed:

  1. there must be no doubts as to the authenticity of the document recording the judgment or as to the spirit of the decision;
  2. the judgment must have become final according to the law of the country in which it was delivered;
  3. it must come from a foreign court whose jurisdiction has not been invoked in breach of the law and must not involve a matter falling within the exclusive jurisdiction of the Portuguese courts;
  4. it must not be possible to submit the defence of lis pendens or res judicata based on a case in a Portuguese court, except where it was the foreign court which prevented the initiation of proceedings;
  5. the respondent must have been duly served in respect of the action, under the law of the country of the court of origin, and the principles of the right of defence and equal protection of the parties must have been observed in the process;
  6. it must not involve a decision whose recognition leads to a result which is manifestly incompatible with the principles of the public international order of Portugal.

16. To which court should I turn in Portugal to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

To obtain the recognition in Portugal of a decision on parental responsibility delivered by a court in another Member State (except for Denmark) and in the situations described above to which Regulation (EC) No 1347/2000 applies, you must submit your application to the district court or the Family Proceedings Court (where one exists in the judicial district). As indicated in the answer to the previous question, these decisions are recognised in Portugal without it being necessary to resort to any procedure.

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You must bear in mind in other situations the rule whereby, without prejudice to the provisions of conventions and special laws, no decision on private rights delivered by a foreign court or by foreign arbitrators is effective in Portugal, whatever the nationality of the parties, without being reviewed and confirmed.

The appeal court for the judicial district in which the person against whom it is intended to have the judgment applied is resident has jurisdiction for review and confirmation (Coimbra, Évora, Guimarães, Lisbon and Oporto).

17. Which is the applicable law in a proceeding on parental responsibility where the child or the parties do not live in Portugal or are of different nationalities?

In proceedings to which Regulation EC No 1347/2000 of 29 May 2000 applies, the courts of the Member State which had jurisdiction to decide on an application for divorce, legal separation or marriage annulment have jurisdiction over any issue relating to the paternal authority over joint children, provided that the child has his or her habitual residence in that Member State.

Therefore, the courts of the Member States in whose territory the following are situated have jurisdiction:

  1. the habitual residence of the spouses;
  2. the last habitual residence of the spouses, provided that one of these still lives there;
  3. the habitual residence of the respondent;
  4. in the event of a joint application, the habitual residence of either of the spouses;
  5. the habitual residence of the applicant if the latter has lived there for at least one year immediately prior to the application;
  6. the habitual residence of the applicant if the latter has lived there for at least six months immediately prior to the application, whether they are a national of the Member State in question or, in the case of the United Kingdom and Ireland, have their domicile there;
  7. the courts of the Member State of nationality of both the spouses or, in the case of the United Kingdom and Ireland, of the domicile of both the spouses.

If the child’s habitual residence is not in the Member State in which jurisdiction was exercised to decide on an application for divorce, legal separation or marriage annulment, the courts of this Member State have jurisdiction if the child’s habitual residence is in one of the Member States and if a) at least one of the spouses exercises paternal authority over this child, and b) the jurisdiction of these courts has been accepted by the spouses and is in the greater interests of the child.

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If no court of a Member State has jurisdiction in the above terms, jurisdiction in each Member State is governed by the law of that State.

Any national of a Member State who has his or her habitual residence in the territory of another Member State may invoke in the latter, on an equal footing with the respective nationals, the rules of jurisdiction applicable in this same State with regard to a respondent who does not have his or her habitual residence in and who is not a national of a Member State or, in the case of the United Kingdom or Ireland, does not have his or her domicile in the territory of one of the latter States.

If a child of unmarried parents lives in one of the Contracting States to the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Minors (which Portugal has ratified) , the courts of the State of habitual residence of the minor normally have jurisdiction to decide on the exercise of paternal authority and, in principle, apply their national law.

It is possible for the authorities of the State of nationality of the minor to order measures aimed at protecting his or her person or property, in accordance with the respective internal law, if they consider that the interests of the minor require this and after having informed the authorities of the State of habitual residence of this.

If these rules do not apply, the rules of Portuguese internal law will apply. It stipulates that the court covering the area in which the residence of the minor is situated or, if the minor does not live in Portugal, of the applicant or respondent has jurisdiction.

If none of the three lives in Portugal but the Portuguese courts have jurisdiction internationally, the Family and Children’s Court of Lisbon has jurisdiction to hear the case.

The courts will apply the national common law of the parents or, failing this, the law of their common habitual residence. If the parents habitually live in different States, the personal law of the child is applicable. If filiation is established only with regard to one of the parents, the personal law of the latter applies. If one of the parents has died, the personal law of the surviving parent applies.

Further information

Notes

[1] This appears to be identical to question 15 and appears to be the opposite of the intended meaning. The original English question is about opposition to recognition.



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Last update: 04-05-2005

 
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