Shared custody: what does it mean and how do the Portuguese courts decide?

When a couple with children decides to separate, one of the first concerns is how the child's life will be organised. Expressions such as "shared custody", "sole custody" and "alternating residence" are frequently used, and there is often some confusion as to what each of them means.

In fact, Portuguese law does not focus on the award of "custody". Its focus is on the exercise of parental responsibilities, and it favours the active involvement of both parents in the upbringing and development of their children.

#The legal framework for parental responsibilities

The exercise of parental responsibilities is governed by Article 1906 of the Civil Code (Código Civil). It applies in cases of divorce, legal separation, nullity or annulment of marriage, and also to parents who are not married.

The general rule is clear. Decisions on matters of particular importance in the child's life, such as education, health, religion or a move abroad, must continue to be taken jointly by both parents, unless this proves contrary to the best interests of the child.

Everyday decisions, on the other hand, fall to the parent with whom the child is staying at the time, provided that the fundamental educational guidelines agreed by both parents are respected.

#Shared custody does not mean alternating residence

This is probably the greatest source of misunderstanding.

In everyday speech, the expression "shared custody" is often used to mean that the child lives half of the time with each parent. In legal terms, however, these are distinct concepts.

Shared custody corresponds to the joint exercise of parental responsibilities. In other words, both parents retain the right and the duty to take part in the decisions that shape their child's life.

Alternating residence, by contrast, concerns only the way in which the child's time with each parent is organised. Shared custody may exist where the child habitually resides with only one parent, just as it may exist alongside alternating residence.

#The best interests of the child as the decisive criterion

In matters of parental responsibilities, there are no automatic solutions.

The guiding principle of any judicial decision remains the best interests of the child, enshrined in the Civil Code, in the General Regime of Civil Guardianship Proceedings (Regime Geral do Processo Tutelar Cível) and in the Convention on the Rights of the Child.

This means that each case must be assessed individually, having regard to the specific circumstances of the child and of the family.

The factors usually weighed by the courts include:

• the age and maturity of the child;
• the emotional bond with each parent;
• the ability of each parent to provide emotional and educational stability;
• the distance between the two homes;
• the child's school and social routine;
• the actual availability of each parent;
• the ability of the parents to cooperate;
• the existence of domestic violence or serious conflict.

There is, therefore, no model that applies universally.

#The development of alternating residence

For many years, the case law approached alternating residence with some caution, and it often depended on agreement between the parents.

That position changed significantly with the entry into force of Law No. 65/2020, which introduced the current paragraph 6 of Article 1906 of the Civil Code.

Since then, the court may order alternating residence even without the parents' agreement, provided that it concludes, having weighed all the relevant circumstances, that this arrangement serves the best interests of the child.

The law also makes clear that this arrangement does not preclude an order for child maintenance where the difference in the parents' financial means justifies it.

#When might shared custody not be appropriate?

Although it is the rule, the joint exercise of parental responsibilities is not absolute.

Where the court concludes that joint decision making compromises the wellbeing of the child, it may grant the exercise of responsibilities for matters of particular importance to one parent alone.

The legislature has given particular weight to cases of domestic violence, maltreatment, sexual abuse or other forms of violence within the family, expressly recognising that in such cases joint exercise may prove contrary to the interests of the child.

#The right of the child to be heard

Another particularly relevant aspect is the hearing of the child.

The law provides that, whenever the child's age and maturity allow, the child must be heard before the court reaches its decision.

This does not mean that the child is given the decision as to which parent to live with. Rather, the child's views are a relevant element which the court must weigh together with all the other factors in the case.

This is a technical note for information purposes. It does not constitute legal advice on any specific case. For that, please contact the firm.