It is not always the case that a child custody order or arrangements will apply until the child’s 18 years of age. It may, in fact, be the case that there are changes in the situation of the parents or that of the child or young person themselves, that impose alterations.
Under what circumstances can the child custody arrengments defined by agreement of the parents or by a court judgment be changed?
The changes to the child custody arrangements can only take place, of course, when a regime agreed between the parents and approved by the Registrar of the Civil Office, or fixed by a court judgment, is already in force.
Both the parents and a third party to whom the child is entrusted, as well as the Public Prosecutor’s Office itself, can initiate an action within the Portuguese Courts with the intent of changing the child custody arrengements.
The change can affect part of the existing arrangement (such as the child’s residence, important matters, visitation schedule with the non-custodial parent, child support), or the entire arrangement. The law provides for the possibility of a change when:
– Both parents repeatedly fail to comply with the established arrangement. This non-compliance can pertain to visitation schedules, child support payments, or any other aspect of the arrangement.
– There is a change in the circumstances that formed the basis of the original arrangement. This change in circumstances could occur after the establishment of the original arrangement or it could be a circumstance that is only known after that date.
Examples of changes in circumstances which may lead to a change in the custody arrangements
The supervening circumstances that justify a change in the child custody arrangements are not expressly contemplated in the law and can be quite diverse. Below are some examples of situations that may lead to an alteration:
- (Significant) decrease in income of one of the parents
The financial responsibility for the child is based on the economic capacity of the parents. Therefore, a significant reduction in the financial capabilities of one parent – for example, if they become unemployed – may naturally lead to changes in the arrangement, such as:
– a reduction in child support payments if the paying parent’s income decreases;
– an increase in child support if the receiving parent’s income decreases;
– a reduction in the contribution to educational and healthcare expenses by the parent whose income has decreased.
- (Significant) increase in income of one of the parents
On another hand, if one parent starts earning significantly more income than when the arrangement was originally established, changes may also be necessary. This being the case, there may also be changes:
– an increase in child support if the income of the paying parent’s significantly increased;
– a decrease in child support if the income of the receiving parent’s increased;
– an increase in the contribution to school and health expenses by the parent whose income has increased.
- Change in the child’s economic situation
It may also happen that it’s not the economic situation of the parents that changes, but that of the child. For example, they may inherit a sum of money or engage in a professional activity. In these cases, there may also be a reduction or even cessation of the obligation to pay child support, particularly if the child no longer requires financial assistance from their parents and can support themselves.
- Change in the child’s or one of the parents’ residence
Changes in the residence of the parents or the child to relatively distant locations may lead to changes in the custody arrangements.
For instance, a child who moves with their mother to Porto will no longer be able to maintain a shared custody arrangement with their father, who remains in Lisbon. Similarly, a father who emigrates to Australia may not be able to have the child with them on alternating weekends, at least in principle.
It should be noted that such long-distance moves that significantly impact the child’s social, family, and school life typically depend on the agreement of both parents, and in the absence of an agreement, a court decision authorizing the move.
- Completion of the child’s education after reaching legal age
After reaching legal adulthood, child support continues to be owed to a child who has not yet completed their professional training until they reach the age of 25. However, if the child completes their education before this age and enters the workforce, for example, the obligation to pay child support will, in principle, come to an end.
Changes to the child custody arrangements by mutual agreement
If the parents agree on the change to the established custody arrangements, they can apply for the change at a Civil Registry Office (Article 274 of the Civil Registry Code). The application must be signed by both parents and be accompanied by:
– The agreement or court decision that determined the child custody arrangements
– The child’s birth certificate.
Upon receiving the request, the Registrar will review the agreement, and if it is deemed not to safeguard the interests of the child, the parents will be invited to refine it. In any case, the agreement is forwarded to the Public Prosecutor at the 1st instance Court in the child’s residence area for a decision within 30 days.
If the Public Prosecutor considers that the agreement serves the best interests of the child and has no objections, the agreement will be sent back to the Civil Registry Registrar for approval.
If, on the other hand, the Public Prosecutor opposes the agreement, the parents will be notified to either amend the agreement accordingly or submit a new one (in which case it will be sent back to the Public Prosecutor for approval) (Article 274-B of the Civil Registration Code).
If the parents do not amend the agreement accordingly, the Registrar will refuse its approval and refer the case to the Court for a decision (Article 274-C of the Civil Registration Code).
In any case, if the child is of sufficient age or maturity, they should be heard in this process by the Public Prosecutor, although this is often not observed.
Changes to the child custody arrangements when there is no agreement between the parents
When the parents do not agree on the change to the child custody arrangements, either of them or the Public Prosecutor’s Office may request the court to make the change.
In the initial petition, the grounds for the alteration request should be presented, along with the original arrangements certificate and/or the court-approved agreement or the Public Prosecutor’s opinion on it (if the agreement was obtained outside of court). The court competent for the change shall be that of the child’s residence at the time the legal action is brought before the court.
Steps of the Court proceeding
In court, the application for a change in the child custody arrangements is not accepted in all circumstances, in particular if the judge considers the application to be unfounded.
Therefore, after the request is filed, the other parent will have a period to respond to the proposed change. After the deadline or upon receiving the response, if the judge deems the request unfounded or the change unnecessary, the case will be closed. On the other hand, if the judge finds the change necessary, a parent conference will be scheduled, attended by the parents, and where grandparents or other emotionally significant individuals may also be present, and where the child may be heard by the court. The goal is to reach an agreement that serves the best interests of the child or young person.
If an agreement is not possible, the proceedings will continue, aiming to obtaining a judgment that decides on the proposed changes.
Nuno Cardoso-Ribeiro, Beatriz Guimarães e Carla Chibeni