Amanda Bueno Almeida
Faculty of Law, University of Lisbon, Portugal

Who will get child custody in dissolution of marriage?
Should shared parenting be expressly provided for in the Portuguese Civil Code?

In July 2018, a petition was submitted to the Assembly of the Portuguese Republic to amend the current law in force in the Portuguese Civil Code regarding parental responsibilities in a marital separation. This petition was the subject of debate among the deputies of the Assembly of the Republic since it gathered a total of 4737 signatures reaching the minimum number of 4000 required for a petition to be subject to a Plenary review.

Currently, the Civil Code provides for a joint exercise of parental responsibilities. This means that in the face of family decoupling all the powers and duties intended to ensure the moral and material well-being of the child should be ensured by both parents. Both are invested in a mission to pursue the interests of the child unless by a reasoned judgment of the court and in the best interests of the child, there are reasons for that exercise to be conferred exclusively on one of the parents.

What is the rule regarding the child’s residence?

In relation to the child’s residence, it is for the Court to determine it considering all relevant circumstances such as the availability expressed by the parents, any agreement between them, and especially taking into consideration the best interests of the child. That is what article 1906 paragraph 5 of the Civil Code provides. In this way, all issues related to the minor must be taken in accordance with their casuistic interests, and not in the interests of the parents or their rights as legitimate as they may be.

Analyzing what is described in law, it is concluded that it does not expressly refers to shared custody as one of the child’s alternatives of residence. On the other hand, it also does not establish an exclusive residence with one of the parents.

Shared parenting is considered to be every time that “the child lives with each of the parents between 50% and 30% of the monthly time, which translates into at least 10 days in a month,” according to Judge Maria Perquilhas, a postgraduate in Protection Minors and Jurisprudence of the European Court of Human Rights.

The subscribers of the petition submitted to the Assembly of the Republic understand the law should be amended in a way that expressly and imperatively provides for shared parenting in case of dissolution of marriage. The main argument on which the petition is based is that the current legislation does not lay down standard-setting criteria for the decision on the child’s residence. They also argue that Portuguese judges opt, in a large majority of cases, for an exclusive residence with the mother, being this considered in legal doctrine and in Portuguese judicial practices a rule by influence of stereotyped conceptions about this new form of family and the dynamics of its functioning, being the mother as a caretaker and the father a provider.

Is this the majority opinion in Portugal?

The Superior Council of the Judiciary and the Attorney General’s Office agree with this petition. The Superior Council of the Judiciary argues: “the principle that, except for substantial reasons, the residence of the children of separated parents must be with both parents, alternately and with a possible adjustment to the specific case by the judge, should be legally stipulated”. The Attorney General’s Office goes further arguing that alternation between the home of both parents should have a privileged status with other solutions (the most common living with the mother with visits to the other). Also, cohabitation should be considered even when there is no agreement between parents.

Against this petition was presented an Open Letter signed by 23 Associations in the sense that families should be free to determine which model of custody and residence best suits them. In addition, the proposed model requires strict application criteria, making it unsuitable for use as a rule-regimen since it may contribute to an increase in conflict and psychological instability in the child.

What do the Portuguese people think about the attribution of paternal power?

According to the International Social Survey Program (ISSP) “Family and Changing Gender Roles” survey of 2014, 47.5% of respondents consider shared parenting as the best regime for the child. 30% say that the children should stay with the parent who has the best conditions, and 22.2% understand that they should live exclusively with the mother and 0.4% with the father.

Will it be better to take a more cautious measure?

In my opinion, Portuguese law clearly defines in article 1906 the custody regime that should be adopted in case of separation or divorce as being the regime that best satisfies the child’s best interest. In this way, what the legislature intended was to ensure the physical and psychological well-being of the child by not imposing a right or wrong regime for most situations. It is understood that the case must be analyzed in order to determine the appropriate custody regime. Insofar as cases of families in which domestic violence, parental conflicts, parents’ inability to cooperate, lack of responsibility and commitments among them are common, there is always a risk of imposing a shared residence regime, which may lead to serious cases of psychological instability in children.

In short, I consider it a drastic measure to change the law in order to legally presume shared parenting. I agree that only conditions and limits should be introduced for the adoption of shared custody regime, so that the child’s interest, evaluated on a case-by-case basis, is always a priority.