Child Custody

What are matters of particular importance?

What are matters of particular importance?

Although the law does not establish what is to be understood by matters of particular importance, the doctrine and jurisprudence have been concretizing this indeterminate concept, by resorting to various examples.

Consensus is gathered as examples of issues of particular importance, among others (inspired by the Guide available at this link):

  • The determination of the child’s place of residence, whenever this implies a significant geographical change, abroad or within the same country;

  • The choice and enrollment of the child in a public or private school;

  • Surgical interventions that imply risk to life or physical integrity (including those of cosmetic order);

  • The obtaining of employment by a young person under the age of 18, or the participation of children in shows, artistic or cultural activities, or for advertising purposes;

  • Religious education until the age of 16;

  • Going abroad, even for a short period of time;

It should be noted that, regarding vacation trips abroad, our coordinator, Nuno Cardoso-Ribeiro, and many courts, understand that this is not a matter of particular importance and, therefore, does not require the consent of the other parent. By the way, read here the article by our coordinator in Público.

As we can see, all the issues listed correspond to existential and rare decisions in the life of a child, hence the law requires that they be made jointly by both parents, under the terms that were in force during the marriage (or non-marital partnership). Therefore, and regardless of the fact that the child usually lives with one of the parents or that one of them has little contact with the child, neither parent may impose a unilateral decision on the other, and one of the parents may only act alone in situations of manifest urgency – in which case they should inform the other as soon as possible, according to article 1906, no. 1 of the Civil Code.

The regime will only be different in certain situations of exceptional severity and where the court considers that decisions should be taken by only one of the parents. In cases of domestic violence, for example, or other forms of violence in a family context, this exercise may be deemed contrary to the interests of the child, by means of a justified court decision, in accordance with article 1906, no. 2 of the Civil Code.

Since joint exercise on matters of particular importance is the rule, there will be many situations in which the parents have differing views on the best decision to make. In such an eventuality, either parent may go to court to resolve the dispute. If this occurs, the court will first attempt to conciliate the parents, and if conciliation proves impossible, will decide according to the best interests of the child.

How are parental responsibilities exercised in Portugal?

In Portugal, once filiation is established, parents are automatically vested with parental responsibilities. This means, in short, that until children reach the age of majority (or are legally emancipated, as a result of the celebration of a marriage before the age of 18), it will be the parents who will watch over their health and safety, ensure their sustenance, direct their education and manage their property, cf. arts. 1877 and 1878/1, of the Civil Code.

During marriage or non-marital partnership, the law establishes that parental responsibilities should be exercised by common agreement, and parents are expected to make joint decisions regarding all aspects of their children’s lives. This scheme, however, cannot be maintained in a separation context, as it implies constant dialogue between the parents – a circumstance that, in the limit, may enhance parental conflict.

As such, and without prejudice to the need to regulate the exercise of parental responsibilities, the law reduces the need for mutual agreement to the decision of aspects that are especially relevant to the life of the children: the so-called “issues of particular importance”.

Acts of Daily Life

The regime described above differs radically from the regime of the so-called day-to-day life acts, concerning the most frequent decisions in the life of a child, relating to the management of its daily life.

As with acts of particular importance, the law does not establish what is to be understood by acts of daily life, but examples of such acts include decisions concerning the type of food the child eats, daily hygiene and clothing, or decisions about going to birthday parties, the cinema or going out at night.

As it is not expected that such decisions imply very significant consequences for the child’s life, it is not required that both parents participate in the decision process, admitting, under the terms of article 1906, no. 3, of the Civil Code, that the decision is taken unilaterally, by one of the parents only.

In cases where the child usually resides with one of the parents, it will be the parent who, by spending most of the time with the child, will make most of the decisions included in this concept. However, these acts may also be performed by the other parent, when he/she has the child with them – with only one limitation: this parent may not go against the most relevant educational guidelines, as established by the resident parent.

Contextualizing, this means that although one of the parents, within the scope of his visitation rights, may freely define the child’s diet, he can no longer prevent him, for example, from attending extracurricular activities in which he is enrolled, but must ensure his attendance (cf. Judgment of the Lisbon Court of Appeal, available here).

In cases in which the child lives with both parents alternately, both parents may freely perform the acts of daily life they deem appropriate, during the periods in which they have the child in their care. It is desirable, however, that they establish the most relevant educational guidelines by common agreement, and it is not admissible for parents to oppose each other by performing incompatible daily life acts.

This is one of the reasons why the establishment of alternating residence, although it does not depend on the parents’ agreement to do so, recommends that the parents be able to dialogue and negotiate in a healthy manner, expecting greater capacity for articulation and negotiation than that required of the parents in a model of habitual residence of the child.

Catarina Caeiro Martins

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