In what cases can the Portuguese court change a regime for the exercise of parental responsibilities defined abroad?
The State whose authorities are competent to take measures to protect the person or property of the child, as well as the law applicable by those authorities in the exercise of their competence, is, as a rule, the State where the child’s habitual residence is located at the time the proceedings are initiated. This is what results from Council Regulation (EU) 2019/1111 of June 25, 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction, together with the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (approved in Portugal by Decree-Law no. 52/2008 of November 13 and in force since August 1, 2011),
However, in certain cases, namely in cases of change of the habitual residence or following an agreement between the parents who hold parental responsibility, the competent State may be different.
Thus, Portuguese courts are often called upon to decide on changes to parental responsibility regimes established in foreign countries, provided that the child is resident in Portugal.
Necessity of the Alteration
The alteration of the regulation of parental responsibilities takes place when a regime is in force, resulting from an extrajudicial agreement or a court decision, and new circumstances (objective or subjective) occur that should determine a change in it, even if only in relation to some of the aspects already regulated.
Thus, for example, the unemployment of one of the parents and the consequent reduction in their income may justify a reduction in the amount of child support. The change of residence of the child or one of the parents, on the other hand, may lead to a change in the visitation arrangements with the non-resident parent.
Another case that may lead to a change is a repeated failure to comply with the scheme.
The change must be requested, by either parent or by the Public Prosecutor’s Office, at the court with jurisdiction in family matters in the child’s area of residence.
Filipe Pinheiro