28
Jan

Custody is the responsibility assigned to one of the parents, both parents or even a third party, to be able to care for the children and live with them.

In accordance to article 82, of the Code for the Protection of children and adolescents, custody is: “Situation of physical or moral nature in which a child or adolescent is under the responsibility of one of their parents, ascendants or a third party. This may be a natural or legal person, by means of a court ruling, as a result of a divorce, de facto or judicial separation, declaration of absence, action or omission that compromises the security and integrity, irresponsibility, neglect, abuse or any other reason.”

In the Dominican Republic, a surrender of custody rights can be decided by a Judge when the parents are not in agreement. However, when initiating a separation or divorce, parents can agree on which one of them will have custody of the children. You may consider:

“VOLUNTARY SURRENDER OF CUSTODY TO ONE OF THE PARENTS”.

It is important to note that custody is provisional in nature and for the matter at hand it is based on an agreement between both parents. However, if one of them decides to request a change of custody, they may request it at the court for Boys, Girls, and Adolescents with the jurisdiction (the sentence issued by this court is also not going to be final).

CUSTODY DUE TO A DIVORCE BY MUTUAL CONSENT.

When both parents decide to end their marital bond through a Divorce by Mutual Consent, they need to draft an act of convention and stipulations before a notary. This document will establish agreements that benefit both parties and the children they have in common (this document includes the custody of such children).

The judge simply ratifies the said agreement, given that the only requirements needed for this end are the marriage certificate, identity documents and the birth certificate for the children.

There are many debates regarding this attribution of ratification by the Judge of First Instance in his attributions in family matters, through a convention and stipulation act. Custody proceedings are within the scope of the Children’s Courts Girls and Adolescents, (NNA); however, in practice, such homologation is accepted, by procedural economy and the will of the parties.

REQUIREMENTS.

The requirements for this type of process are:

1) Original Birth Certificate for the child (legalized).

2) Copy of the parent’s Dominican state ID (known in the country as Cédula).

3) Document where a legal representative is declared, granted power of attorney and consented by the spouse (in the event that the party is unable to attend the hearing).

In accordance with Article 101 of the Code for the protection of children and adolescents, the presence of both parents is mandatory, stating: “Both parents are required to be present throughout the process.” If a person refuses to appear in court, the judge may order them to do so. Uncommonly, the judge may accept the legal representation.

Consequently, although both parents are in agreement, they are required to attend the corresponding prosecutor’s office. Only on rare occasions, they may send a power of attorney authorizing a family member or legal representative on their behalf.

In the event that the parent who will surrender custody is outside the Dominican Republic, they would need to go to the nearest Dominican consulate. At the consulate, they would need to authorize a relative by consular power (authorized in the Foreign Ministry), to represent them and carry out the custody process.

PROCESS TO FOLLOW.

Parents who agree on custody terms would need to go to the corresponding prosecutor’s offices for children and adolescents, based on the place of residence of the child.

Parents will declare themselves in agreement to surrender custody voluntarily to the other party before said prosecutor’s office. Subsequently, a conciliation document or act will be signed, in which one of the parties voluntarily concedes custody to the other.

In accordance with Article 99, of the Code for the protection of children and adolescents, the Law establishes the following: “If the parties reach an agreement on custody as a result of mediation, a certificate of surrender of the child or adolescent must be drawn up, signed by the officer of the Public Ministry of Children and Adolescents and other persons involved in said mediation. The certificate will include the obligations and rights pertaining to those who assume custody and the sanctions that will apply due to non-compliance. The certificate needs be submitted to the judge for approval or rejection; without this formality, said certificate will not have legal effect. The judge may request supporting evidence from the parties to determine the adequacy of the change in custody.

PRINCIPLE OF THE BEST INTERESTS OF CHILDREN AND ADOLESCENTS.

It is important to note that in custody proceedings, the first thing to consider is not who is in a better financial situation, but to determine which parent meets the moral conditions, the environment where they live, workplace, places that they frequent, among others.

Since the protection of children is the most important factor in this matter, courts try to ensure that both parents are in equal conditions to care for underage children. In order to approve the request, the courts will take into account several factors, and in the final part of article 99, the Law establishes the following: “…The judge may request supporting evidence from the parties to determine the adequacy of the change in custody. ”

The most important aspect to take into account is what the Code for Children and Adolescents states, when it refers to the best interests of the child or adolescent. The code states the following: “The principle of the best interest of the child or Adolescent should always be taken into account when understanding and applying this Code and its compliance is mandatory in all decisions concerning the matter at hand. It seeks to contribute to their comprehensive development and ensure the full and effective enjoyment of their fundamental rights. In order to determine the best interest of the child or adolescent in a specific situation, one must take into account: a) The opinion of the child or adolescent; b) The need to have a balance between the rights and guarantees of the child or adolescent and the demands of the common good; c) The specific condition of the children or adolescents as developing individuals; d) The indivisibility of human rights and, therefore, the need for balance between the different groups of rights of children or adolescents and the principles on which they are based, in accordance with the provisions of the International Convention on the Rights of the Child; e) The need to prioritize the rights of children and adolescents over the rights of adults. ”

If you would like to receive personalized and detailed advice on this subject, you may contact us and one of our Family Law Specialist from the Morillo Suriel Attorneys at Law Firm will be happy to assist you.