Meaning of parental responsibilities and their duration
Parental responsibilities are powers and duties assigned to parents in relation to their children. Children are subject to parental responsibilities until they reach the age of majority or emancipation. The age of majority is age 18. Minors who have reached the age of 16 may become emancipated by marriage.
Rights and obligations of a holder of parental responsibilities
Parental responsibilities include the following powers and duties of parents in relation to their children:
The following are valid in exceptional circumstances:
(For acts relating to the profession, art or trade of the minor and for acts practised in the performance of such profession, art or trade, only assets that the minor has free disposal of are eligible).
Assets owned by the parents:
Income from the child’s assets
Limitations on parental responsibilities
Parents do not administrate:
As representatives of the child, parents may not, without authorisation from the court:
The parents may not, without court authorisation:
End of administration
Parental responsibilities within marriage
Acts performed by one of the parents
Joint exercise of parental responsibilities by the child’s sole parent and by their spouse or civil partner
The court must, whenever possible, hear the minor.
Yes, as follows:
If one or both parents are unable to exercise parental responsibilities
When one of the parents is unable to exercise parental responsibilities due to absence, incapacity or other impediment decreed by a court, the other parent must exercise the responsibilities. If the other parent is prevented from doing so by judicial decision, the responsibilities must be exercised by the following persons in order of preference:
These rules are also applicable mutatis mutandis, where parenthood is established only in regard to one of the parents.
Death of a parent
On the death of one of the parents, the exercise of parental responsibility falls to the surviving parent.
Cases where the minor is subject to mandatory guardianship:
Note: prohibiting the exercise of parental responsibility may relate solely to the guardianship of the child themselves or to the administration of their assets, or cover both aspects.
Cases where the system of administration of the child’s assets is established:
Guardianship and administration of assets of the court’s own motion:
Whenever one of the situations indicated above, which constitute grounds for establishing guardianship or the administration of assets, applies to the minor, the court must, of its own motion, establish guardianship or administration of assets.
Any administrative or judicial authority, or civil registry officials who are aware of such situations in the exercise of their duties must notify the competent court thereof.
How guardianship and administration of the child’s assets is exercised
Guardianship is exercised by a guardian and by the family council. The guardian has the same rights and obligations as the parents, albeit with the amendments and restrictions set forth by law.
The administration of assets is exercised by one or more administrators and, if guardianship is established, by the family council.
Guardianship and administration of assets are both exercised under the supervision of the court.
It is the responsibility of the court to confirm or appoint guardians, administrators of assets and members of the family council.
Who can be a guardian
Parents can appoint a guardian for their children. The appointment must be confirmed by the court. When parents have not appointed a guardian, or the appointment has not been confirmed, it falls to the court, after hearing the family council, to appoint the guardian.
Before appointing the guardian, the court must hear the minor.
The court must choose the guardian from among:
Who cannot be a guardian
The following people cannot be guardians:
Who can be an administrator
The rules referred to above with respect to the choice of guardian, and prohibition from exercising this role, also apply to the administrator, unless otherwise specifically provided for by law.
Additionally, the following persons may not be administrators:
Allocation of parental responsibilities due to de facto inability of the parents to exercise parental responsibilities
Where the parents are de facto unable to exercise parental responsibilities, the prosecution office must take the necessary measures to protect the minor and may, for this purpose, appoint a person who, on behalf of the minor, may enter into legal transactions that are urgent or of clear benefit to that minor.
Limitation of the exercise of parental responsibility in situations of danger to the minor that do not entail barring from the exercise of parental responsibility
When the safety, health, moral teaching or education of a minor is at risk but it is not necessary to go so far as to bar the exercise of parental responsibility, the court may, on the application of the prosecution office or any other person, take appropriate measures to protect the minor.
The care and protection measures provided for in law to avert high-risk situations for the minor are as follows:
When there is consent from the parents and no opposition from the minor, the child and youth protection committees (comissões de protecção de crianças e jovens) are competent to apply the child protection and assistance measures referred to above, without the intervention of the court, with the exception of the final measure listed (being entrusted with a view to adoption), which only the courts may apply.
Child and youth protection committees are financially autonomous, non-judicial official institutions that seek to promote the rights of children and young people, and to prevent or end situations that may affect their safety, health, teaching, education or development as a whole.
When one of the measures referred to above has been enacted – by the court or by the committee for the protection of children and young people – the parents retain the exercise of parental responsibility in everything that is not incompatible therewith.
If the minor has been entrusted to a third party or an education or care establishment, a parental visitation system will be set up, unless, in exceptional cases, the child’s interests advise against this.
Limitation of the exercise of parental responsibility in situations dangerous to the minor’s assets, that do not entail barring from the exercise of parental responsibility
When maladministration by the parents endangers the assets of the child, but it is not a case of barring the exercise of parental responsibility, the court may, on the application of the prosecution office, or any relative, order such measures as it deems appropriate.
Taking into account the value of the assets, the court may, in particular, demand the following from the parents:
and, when these measures are not sufficient:
The exercise of parental responsibility in the event of divorce, legal separation, declaration of nullity or annulment of marriage is governed according to the following principles:
In order for the agreement on parental responsibilities to be legally binding, it must be approved by the court or civil registrar, in one of the forms indicated in the answers to questions 6 and 10.
The parties may use alternative means of resolving the conflict, either before requesting the court’s intervention, or in the course of legal action.
Mediation prior to court intervention
Principle of voluntary mediation
Before bringing a case to court, parents may use public or private family mediation to reach an agreement on parental responsibility.
Portugal applies the principle of voluntary mediation. Parties to a family conflict relating to their children may, by agreement, use public or private family mediation before initiating legal action. Once action has been brought, the court may also refer the parties for mediation, but cannot impose this if the parties do not agree to it, or object.
Mandatory ratification of the agreement
Once the agreement has been obtained as a result of the mediation, in order for it to be binding and enforceable, the parties must apply for its ratification by the court or the civil registry registrar, as the case may be.
Actions on family matters that fall within the competence of the civil registry registrar require the prior agreement of the parties, otherwise they fall within the competence of the courts.
Civil registry offices are competent to ratify the agreement with respect to parental responsibilities only when it is annexed to an agreement on divorce or legal separation by mutual consent. Prior to ratification by the registrar, the prosecution office issues an opinion on the agreement in so far as it concerns parental responsibilities relating to minor children.
Where family mediation takes place before the action is proposed and is intended solely to settle parental responsibilities relating to minor children (without the agreement being annexed to a divorce or legal separation agreement), the ratification of that agreement must be requested by the parties from the competent court.
If the parties use private mediation, they must pay the mediator’s fees. The cost of such fees, the rules and the timing of the mediation are set out in the mediation agreement signed by the parties and the mediator when mediation commences. The Ministry of Justice organises a list of mediators that the parties may consult in order to choose a private mediator, at http://www.dgpj.mj.pt/sections/gral/mediacao-publica.
To use public mediation, the parties should contact the alternative dispute resolution office of the General Directorate for Justice Policy (Direcção Geral da Política de Justiça) and request the scheduling of a pre-mediation session. They can do this by phone, email or electronic form. At the public pre-mediation session, the mediation agreement between the parties and the mediator is signed. The duration is fixed, the sessions are scheduled and the procedure’s rules are explained. The cost of public family mediation is EUR 50.00 for each party, regardless of the number of sessions scheduled. This fee of EUR 50.00 is paid by each of the parties right at the beginning of the public mediation. The fees of public mediators are not borne by the parties. They are paid by the General Directorate for Justice Policy according to a table laid down by law.
The public mediation sessions may take place at the premises of the General Directorate for Justice Policy or at facilities made available in the municipality where the parties have their residence.
In public mediation, the parties may choose a mediator from among those who are selected for the public system. The list of public mediators can be found on the website referred to above. If the parties do not choose a mediator, the alternative dispute resolution office of the General Directorate for Justice Policy indicates one of the mediators from the list of public mediators, in sequential order and taking into account proximity to the parties’ area of residence. As a general rule, this appointment is made by computer.
If the parties receive legal aid, this may cover the costs of mediation.
Mediation and specialist technical hearings in the course of legal proceedings
If the parties refer the matter to court, civil proceedings regulating the exercise of parental responsibility will be initiated, in which the judge begins by setting up a parent meeting.
When the parents cannot reach an agreement at the meeting, the judge will suspend it for a maximum period of two to three months, depending on the case, and refer the parents for mediation (if they agree to use this method), or for specialist technical hearing (which may be imposed on parents as mandatory).
At the end of that period, the judge is informed of the outcome of the mediation or specialist technical hearing and will set a date for continuation of the meeting in order to secure and/or ratify the agreement.
If at the end of this phase the parents cannot reach an agreement, then the litigation phase of the proceedings follows – the parents are notified to file their pleadings and to produce evidence, followed by the investigation and judgment.
As a preliminary point, it is important to emphasise that in Portugal, in the event of divorce, separation, annulment of marriage, and in cases where there is no marriage or co-habitation of the parents, the decision on the exercise of parental responsibility must always be taken on the basis of three fundamental aspects: the custody of the minor, the visitation regime and the maintenance due to the minor. In other words, the obligation to provide maintenance to a minor child is considered to be one of the parental responsibilities, and in principle it is regulated together with the other parental responsibilities, although in certain cases an action may be brought only to set and amend the maintenance due to a child.
The court may decide on the following matters:
As a rule, no. Even if custody of the minor child is assigned only to one parent, parental responsibility on matters of particular importance to the child’s life lies with both parents, unless the ruling determines that such exercise falls exclusively to one of them.
As regards the other aspects of the question, the answer has already been covered in detail in the reply to question 4.
In practice, joint custody means that:
Procedural methods for bringing action relating to parental responsibility
Care and protection procedures
If the minor is in a situation that may jeopardise their safety, health, moral teaching or education, and if the exercise of parental authority was limited by application of one of the care and protection measures indicated in the answer to question 3, care and protection proceedings will be instituted, falling within the competence of the committees for the protection of children and young people or of the courts, as appropriate.
Civil guardianship procedures
In the other cases indicated in the answer to question 7, concerning regulation of the exercise of parental responsibility, a civil guardianship procedure will be initiated, which falls within the competence of the courts.
Procedures within the competence of the civil registry offices
In cases where there is an agreement concerning regulation of the exercise of parental responsibility, whether or not this is annexed to a legal separation or divorce agreement, a case is filed at the civil registry office. It is incumbent upon the Registrar to ratify the parental responsibility agreement after having heard the opinion of the prosecution office.
Note: When divorce proceedings are initiated without the consent of the other spouse, the court is competent and the procedure takes the form of special divorce proceedings without the consent of the other spouse. If in the course of the action the parties reach an agreement, the court converts the proceedings into divorce proceedings by mutual consent and ratifies the agreements, including relating to parental responsibilities, if there are minor children.
Formalities and documents to be enclosed (these vary according to the form of the case and the competent authority):
Care and protection procedure initiated at the committee for the protection of children and young people
Care and protection procedure in court
Civil guardianship procedure
Procedures within the competence of the civil registry offices
In cases where the agreement on parental responsibilities is annexed to a divorce or legal separation agreement, the following documents must be submitted:
In cases where the parents, whether or not married, wish to regulate the exercise of parental responsibility over minor children of them both, or to amend an agreement already ratified, they must request this at any time from any civil registry office. To this end, they should include the following documents:
Entities to which the interested parties must refer (depending on the case, the courts, child and youth protection committees and civil registry offices):
Jurisdiction and competence of the courts
On the matter of regulating parental responsibility, the family and minors court at the district court (tribunal de comarca) is the competent court. In areas not covered by the family and minors court, the local civil court at the district court or the court with generic competence has jurisdiction.
The following rules on jurisdiction apply:
Jurisdiction and competence of the child and youth protection committees
The child and youth protection committees are competent in matters relating to procedures concerning the care and protection of children and young people at risk, where there is parental agreement and there is no objection from the minor. The protection committee of the minor’s place of residence at the time notification of the situation is received is competent for the application of care and protection measures.
The following rules on jurisdiction apply:
Competence and jurisdiction of the civil registry offices
Depending on the matter, civil registry offices are competent to ratify the agreement with respect to parental responsibility, whether submitted in isolation or annexed to applications for divorce or legal separation by mutual consent.
Depending on the matter at issue, civil registry offices are competent to process and decide on divorce or legal separation proceedings by mutual consent, including the ratification of agreements with respect to parental responsibility annexed thereto.
Territorial jurisdiction rules do not apply to civil registry offices. In other words, the parties may refer to any civil registry office.
Competence in related actions
Where the civil guardianship procedure concerns more than one child, a single procedure may be instituted and, where different procedures have been instituted, all of them may be joined to whichever was initiated first, if family relationships justify this.
The procedure has already been referred to in the reply to question 10.
Care and protection cases and civil guardianship cases may be treated as emergency procedures when a delay may adversely affect the interests of the child. In this case, they continue to be processed during judicial holidays.
In any event, provisional measures may be applied in emergency situations.
In particular, the following urgent legal proceedings are provided for:
In addition, the following non-judicial emergency proceedings are provided for:
Yes, legal aid is available for proceedings before the court and the civil registry office.
Yes, in the manner already indicated in the answer to question 10.
Infringement of a decision on parental responsibility
If, with respect to the child’s situation, one of the parents or a third party to whom they have been entrusted does not comply with what has been agreed or decided, the court may, of its own motion, on an application from the prosecution office or from the other parent:
If the agreement has been ratified by the court or the court has pronounced its decision, the application is processed as a joinder to the procedure in which the agreement was made or a decision was pronounced, for which the respective court will be petitioned if, according to the rules on competence and jurisdiction, it is the court competent to hear the infringement.
Once the application has been processed or appended to the procedure, the judge summons the parents to a meeting or, in exceptional cases, notifies the respondent to plead as they deem appropriate within five days.
At the meeting, the parents may agree to amend what is established for the exercise of parental responsibility, taking into account the child’s interests.
In the case of non-compliance with the visitation regime, if the respondent does not attend the meeting, does not submit pleadings, or if their pleadings are manifestly unfounded, the court may order the surrender of the child so that the visitation regime can be complied with, specifying where the visits should take place and providing for the presence of court technical advisers.
The respondent is notified to release the child in the manner determined, subject to a fine being imposed.
If a meeting is not convened or if the parents fail to reach an agreement, the judge refers the parties for mediation (if the parents agree to use it) or to a specialist technical hearing, and then reaches a decision.
If a fine has been imposed and it is not paid within 10 days, enforcement will take place, joined to the respective procedure.
In order to enforce the provision of maintenance, three alternative means may be used: the hearing for infringement of parental responsibility, referred to above; the pre-enforcement hearing for the provision of maintenance, as mentioned below; or the special maintenance enforcement, mentioned below.
Pre-enforcement hearing to recover maintenance due
When the person legally liable to pay maintenance fails to pay the amounts due within 10 days of the date when it became payable, the following shall be observed:
The amounts deducted also cover maintenance accrued beforehand, and are paid directly to those due to receive them.
Special maintenance enforcement
In the event that maintenance is due to minors, the maintenance creditor may, alternatively, bring special enforcement action for maintenance, as provided for in the Code of Civil Procedure (Código de Processo Civil). Thus, in a single action, they may recover in full the amounts due, overdue or to become due. In an enforcement action, the maintenance creditor may make use of broader means of enforcement, such as seizure and pledge of income.
In special maintenance enforcement, the applicant may request: the adjudication of a proportion of the amounts, salaries or pensions of which the other party is in receipt; or a pledge of income belonging to the maintenance debtor. The adjudication or pledge takes place independently of seizure and is intended to cover the payment of overdue amounts and amounts that will become due.
When the applicant requests the adjudication of amounts, salaries or pensions, the body responsible for paying these or for processing the respective payments will be notified that it is to pay the adjudicated part directly to the applicant. The amount adjudicated must be deposited monthly in the bank account of the applicant, who must give the account number in the initial application.
If the application requests a pledge of income, they must specify the property to which this relates, and the enforcement agent will order that the property considered is sufficient to meet maintenance that is overdue and will become due be pledged.
The maintenance creditor may still request the seizure of the maintenance debtor’s property. Seizure may involve movable property and immovable property, bank deposits, credit rights, commercial establishments or company shares.
If the seized property is sold to pay off a maintenance debt, the return of the excess to the maintenance debtor should not be ordered unless the payment of maintenance that will become due is ensured to the extent that the judge considers appropriate, unless a security or other suitable guarantee is provided.
The maintenance debtor should only be summoned after the seizure/adjudication/pledge of income has taken place. The maintenance debtor’s opposition to the enforcement or seizure does not stay the enforcement.
In the case of a request to amend or terminate maintenance payments while special maintenance enforcement is pending, the request for amendment or termination is joined to the enforcement.
Recognition of a decision on parental responsibility issued in another Member State bound by Regulation No 2201/2003 of 27/11/2003 (hereinafter, the Brussels IIa Regulation) is automatic. In other words, there is no need for any special procedure for the decision to be recognised.
In order to enforce in Portugal a decision on parental responsibility within the meaning of the Brussels IIa Regulation issued in another Member State, the party concerned must bring an action for a declaration of enforceability of that decision before the court.
There are, however, two cases provided for in Article 40 of the Brussels IIa Regulation where an application for a declaration of enforceability is not necessary, and the certificate issued by the court of origin under the Brussels IIa Regulation is sufficient to enforce a judgment given in another Member State in Portugal. This occurs in the following decisions: decisions concerning visitation rights, and decisions ordering the return of the child rendered by the court with jurisdiction following a decision of non-return issued under Article 13 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
Territorial jurisdiction for the application for enforceability
Territorial jurisdiction for the application for a declaration of enforceability is laid down in the Brussels IIa Regulation as follows: the application must be filed before the court of the area of residence of the maintenance debtor; or the area of residence of the child to whom the maintenance is due; or, in the absence of any of these connecting factors, the place of enforcement.
Requirements and documents that must accompany the application for enforceability
The requirements and documents that must accompany the application for enforceability are laid down in the Brussels IIa Regulation. In summary, the applicant must attach the following to the application for enforceability: a certified copy of the judgment; the certificate of the decision issued using Annex II to the Brussels IIa Regulation; in the case of a decision pronounced without the defendant having been present or having contested it, evidence that they were summoned or that they have unequivocally accepted the decision.
Procedure applicable to the application for enforceability provided for in the Brussels IIa Regulation
The applicable procedure is governed by the rules laid down in the Brussels IIa Regulation, and for any aspect not provided for in that regulation, by the internal rules of Portuguese civil procedure.
Thus, it follows from the Brussels IIa Regulation that the enforceability decision is not preceded by a contradictory procedure, and that the application may be refused only on one of the grounds laid down in that regulation. An appeal against the enforceability decision may be brought by either party within the time limits laid down in the Brussels IIa Regulation. The Portuguese court may rule that the foreign judgment is partially enforceable, but cannot review it as to its substance.
Applicable Portuguese rules of civil procedure
The application for enforceability must be submitted to the family and minors court at the district court. Where there is no family and minors court, the application must be submitted to the local civil court at the district court or to the court with generic competence.
The action is in the form of common declarative action, as provided for in the Portuguese Code of Civil Procedure (Código de Processo Civil), with the specifications set out in the Brussels IIa Regulation.
Since an appeal is always admissible, regardless of value, appointing a lawyer is mandatory.
The prosecution office may take action in defence of the minor’s interests.
In the initial application. the applicant must:
The initial application and documents are submitted by legal representatives electronically using the computer system supporting the activity of the courts, to the address https://citius.tribunaisnet.mj.pt/.
The same procedure applies when the action is brought by the prosecution office in defence of the interests of the minor. The prosecution office is exempt from costs when acting in defence of the minor’s interests.
To access the computer system, lawyers, trainee lawyers and solicitors must be registered with the entity responsible for managing access to the computer system.
Whenever a claim does not involve the appointment of a representative, and the party is not assisted or when the party is assisted by a representative but there is a justifiable reason impeding the latter from carrying out procedural acts electronically, the initial application and documents may be submitted in one of the following ways:
The initial application and accompanying documents, once received in court, are officially recorded and distributed. The judge verifies that all the necessary information is present and that there are no grounds for refusal, as provided for in the Brussels IIa Regulation, and declares the enforceability of the decision. The decision on enforceability is then notified to the parties.
Article 21 of the Brussels IIa Regulation provides for the possibility of an interested party applying in a Member State for a declaration of non-recognition of a decision on parental responsibility issued in another Member State.
In this case, the court to which the party should apply in Portugal and the applicable rules of procedure are those indicated in the answer to question 15, with the following clarification: this is a case of a common action for discharge of a debt. This has consequences with regard to the rules of the burden of proof, since under Portuguese law, in actions for discharge of a debt, it is for the defendant to prove the facts constituting the right claimed.
Relations between parents and children are governed:
or, failing this,
or, if the parents habitually reside in different States,
Personal law is that of the individual’s nationality. In the case of stateless persons, the stateless person’s personal law is that of their place of residence. However, if the stateless person is a minor or disqualified person, their personal law is that of their legal domicile.
The information contained in this factsheet is not binding on the EJN-Civil Contact Point or the courts or other entities and authorities. Furthermore, the factsheets are not a substitute for reading the prevailing legal texts. They are regularly updated, subject to evolving interpretation of case-law.
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