Portuguese regulations have several provisions to protect children’s rights and guarantee that parental duties are fulfilled, regardless of the parents’ nationality.
This article explores the main elements related to custody and parental responsibilities for foreigners, focusing on situations where one or both parents are not Portuguese nationals.
Parental Duties in Portugal
Parental duties encompass the rights and obligations that parents have concerning their children, particularly in areas such as education, health, well-being, and property. In Portugal, both parents exercise parental duties jointly, provided it does not compromise the child’s best interests, irrespective of the parents’ marital status or nationality.
In the event of separation or divorce, parents can agree on the division of parental duties. If they cannot reach an agreement, the court will decide, always prioritizing the child’s best interests.
Application of Custody and Residence Rules to Foreigners
For foreigners residing in Portugal, the framework for custody and parental duties has certain specificities if one parent lives outside the country.
Jurisdiction: According to European Council Regulation (EC) No 2201/2003, jurisdiction for custody and parental responsibility matters belongs to the court of the Member State where the child usually resides.
International Jurisdiction Conflicts: When one parent lives outside of Portugal, conflicts may emerge concerning the child’s residence. Therefore, the 1980 Hague Convention on the Civil Aspects of International Child Abduction prevents the illicit relocation of children from their usual place of residence and ensures their prompt return. This regulation is crucial for international couples, where one parent might want to take the child to their home country without the other parent’s consent after separation.
While parents can arrange the cross-border exercise of parental duties, they cannot independently change the child’s residence without mutual consent or court approval. The court will only allow such a change in rare instances where it serves the child’s best interests.
If only one parent moves, leaving the child in Portugal, the court might modify visitation rights to maintain consistent and meaningful contact between the parent and child. Courts often use technology solutions, like scheduled video calls, to uphold parental connections and safeguard the child’s well-being.
Prioritizing the Child’s Best Interests
The “best interests of the child” principle is fundamental in regulating parental duties, as specified in the Convention on the Rights of the Child. This principle necessitates that all decisions about minors prioritize their well-being and healthy development over any competing parental interests.
Portuguese legal rulings have highlighted that this includes not only the child’s physical and material well-being but also their emotional, psychological, and affective development. Thus, all decisions concerning custody, visitation, and parental responsibilities must address these broad needs of the child.
Conclusion: Safeguarding the Rights of Children and Foreign Parents
When defining parental duties, it is crucial to consider challenges in international contexts, especially regarding the child’s residence.
EU legislation anticipates many of these situations, helping to protect the child’s interests when all involved countries are Member States. However, challenges can intensify when there are connections to non-EU jurisdictions, where cooperation between legal systems is not predetermined by an international treaty.
Foreigners residing in Portugal or those dealing with transnational family circumstances should seek specialized legal counsel to ensure that their rights and their children’s rights are fully protected. While Portuguese law and international agreements offer robust protection mechanisms, legal assistance is often vital to navigate complex cases and uphold the child’s best interests with minimal strain on the parents.
Contact us now on tp.lagelevragla@ofni for assistance with your problem and/or obtaining the right advice.