In the current global context, we increasingly observe cross-border movements that challenge the application of the law and bring new jurisdictions and realities to the courts. The number of citizens currently residing in Portugal who had their children’s custody arrangements regulated abroad, as they were residing in a different country at the time of the regulation, is increasing.
In principle, for a decision from a foreign court to have legal effects in Portugal, it must be recognized (reviewed and confirmed) by the Court of Appeals in the area of residence of the person against whom the judgment is to be enforced, in accordance with Articles 978 and 979 of the Portuguese Civil Procedure Code.
In these proceedings, the appointment of legal representation (an attorney) is mandatory.
Custody arrangements established in countries from the European Union
However, due to Regulation 2019/1111 of the European Council dated June 25th, which applies to matters of parental responsibilities, decisions from courts of European Union Member States (except Denmark) do not need to be reviewed and confirmed by Portuguese courts to be effective in Portugal.
For instance, a decision from the French courts regulating the exercise of parental responsibilities is automatically recognized in Portugal without the need for review by Portuguese courts.
Similarly, decisions regarding child support issued in a European Union Member State bound by the 2007 Hague Protocol (the signatory countries can be found here) are automatically recognized and enforceable in Portugal, through Regulation No. 4/2009 of the European Council, dated December 18th. Therefore, a court order granting child support, for example, in Germany, is valid and can be enforced in Portugal without any formalities.
On the other hand, an order issued in a country not bound by the Hague Convention, such as Denmark, can be enforced in Portugal as long as an enforcement declaration is issued here.
Custody arrangements established in non-European Union countries
Decisions issued by countries outside the European Union, but signatories to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Cooperation in Matters of Parental Responsibility and Measures for the Protection of Children, such as the United States of America, Russia, or the United Kingdom, are automatically recognized and enforced in Portugal without the need for any review or confirmation procedure by Portuguese courts.
On the other hand, decisions issued by countries that are neither signatories to the Convention nor members of the European Union, such as Brazil or India, must undergo a review and confirmation process by Portuguese courts in order to have legal effects in the Portuguese legal system. For more information on this topic, you can read our article on the review of foreign judgments.
When it comes to decisions regarding child support, the Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations stipulates that decisions made by courts of Contracting States, such as Turkey and Ukraine, must be recognized and enforced in Portugal provided that the originating State has the competence to do so.
What to do in case of non-compliance with foreign-established custody arrangements?
As we have noted, parental responsibility regimes from foreign countries are often applicable in Portugal. Therefore, if a visitation schedule, for example, is not being respected, or child support payments are not being made, the appropriate legal action must be taken by filing a petition with the court. To learn more about non-compliance with custody arrangements, you can check out the articles on our website.
Nuno Cardoso-Ribeiro e Beatriz Guimarães