20
Feb

Before explaining the process to request custody of a minor in the Dominican Republic, we must refer to the bases that support this figure. These bases are as follows:

1. The law that governs this matter in the Dominican Republic.
2. The concept or meaning of this figure.
3. And most importantly, what Legislators and the State are pursuing it. To this end, we would like to add the following:

“The Custody of minors in the Dominican Republic is regulated by Law No. 136-03, code for the protection of Children and Adolescents in the Dominican Republic”.

Article 82 of the Code of Children and Adolescents, clearly and concisely defines what Custody is. It states the following: ¨It is the situation in which a Child or Adolescent is entirely under the responsibility of one of their parents, an older family member or a third party through a court ruling¨.

That is usually caused by the following:

1. The parent’s Divorce.
2. Judicial or ‘De facto’ separation.
3. Statement of absence.
4. Action or Omission that compromises the safety and integrity of the minor.
5. And any other case or situation that can be detrimental to the minor and can be demonstrated.

Something to note is that “Custody of a Minor in the Dominican Republic is a matter of public order and, most importantly, it has a provisional nature”. This means that it will never be perpetual and irreversible, given that the option of requesting its variation is always available.

The Custody of a minor in the Dominican Republic can be:

1. Shared Custody.
2. Sole Custody, which may be granted to one of the parties listed above.

The Custody process in the Dominican Republic can take place in the following ways:

1. Amicably: One or both parents concede voluntarily.
2. Disputed: Through a lawsuit before the court having jurisdiction.

This process is widely used and requested in the Dominican Republic. This is especially true when it comes to underage children, with a parent living abroad, who has made a request for the purpose of residing in a different country. For the most part, these cases are handled in an amicable manner; conversely, for cases in which the process will be carried out by a lawsuit, the process is:

The process to Claim Custody of a Minor:

• The first step is to determine which court has jurisdiction to handle the lawsuit. This court will always be selected based on the child’s domicile or the domicile of the person who has custody.

• Before the legal motion starts, a mediation phase must be exhausted before the Public Ministry of the Court for Children and Adolescents. This process is an attempt to reach an agreement between the parties. If the parties do reach an agreement, a delivery certificate is drafted and it must be ratified by the judge with jurisdiction.

If an agreement is not reached, the claim can be started immediately, and can be done as follows:

• Personally, by the interested party.
• By Attorney Representation.
• At the request of the Public Ministry of Children and Adolescents.

The claim is filed with the secretary, at the Court of Children and Adolescents, along with the appropriate supporting documents and petitions, such as:

• Identity documents and general information of the claimant, the child or adolescent, and the person or persons holding or impeding visits, if applicable.

• The birth certificate of the child or adolescent, if possible.

• The motives on which the claimant bases their claims.

• Information regarding the possible location of the child or adolescent.

• Copy of the divorce decree, separation documents or any agreements pertaining to custody or visitation, certified by the authority with jurisdiction, if applicable.

• Certifications, statements or any other relevant documentation.

What are the factors a Judge considers when granting Custody or Visitation rights to one of the parents?

To summarize, the Judge will make a decision based on the best interest of the child or adolescent in question. The comfort and well-being of the child or adolescent is and should be, the center of the analysis in this topic. Additionally, this code also states that the following must be taken into consideration:

1. The socio-economic evaluation conducted by the Children and Adolescents National Council (known in Spanish as CONANI).
2. Prior agreements reached by the parents.
3. The divorce judgment, if applicable.
4. Repeated violations of agreements, prior to the child custody lawsuit.
5. Additionally, the judge will consider all relevant documentation submitted as proof, in order to determine the suitability (or lack thereof) of the parties seeking custody or the establishment of a visitation schedule.

Immediately after the judge makes a decision on who will be granted custody of the child, they would also need to review and grant a visitation schedule to the other party, if applicable.

What are the factors taken into consideration for the purpose of granting visitation rights?

1. Right of access to the residence of the child or adolescent.
2. The possibility of transportation to a different location for hours and days.
3. The recurrence of visits, vacations, and other elements.
4. Extension of visits to family members over 18 years of age, if it was requested.
5. Any other type of contact between the child or adolescent and the person to whom the visitation right was granted. Some examples of said contact are: written, telephone and electronic communications, as long as the rights of the child or adolescent are not infringed.

As the law states, the purpose of this process is to ensure the well-being of the child in every way possible. All circumstances and parties involved are evaluated, in order to make a decision that is:

1. Beneficial for the child in question.
2.  Suitable for the child.

As lawyers specializing in this topic, we strive to make this process as unintrusive and simple as possible for all parties involved, but especially for the child. All parties should also take this in consideration, and try not to harm the child with this process. Despite the fact that this is handled by a special court and is a special matter, it is still a contentious process that can affect both parties.