Parental rights and divorce Realistic

Understanding Parental Authority: Rights, Duties, and Attribution in Cases of Divorce or Separation

Parental authority is the set of rights and duties that parents have over their unemancipated children.

These rights and duties are not altered by divorce or separation of a couple.

1. Separation, annulment and divorce do not exempt parents from their obligations towards their children

That is, the breakup of a couple does not affect the duties and rights of parents:

  • Watch over your children, keep them in your company, feed them, educate them, and provide them with comprehensive training.
  • Represent and manage children’s assets.

In most cases, the breakup of a couple generates uncomfortable and conflictive situations for the family.

Parents should avoid uncomfortable situations for their children, treating their differences with caution for their well-being. In any case, our law protects and protects the well-being of minors.

Understanding Parental Authority: A Comprehensive Analysis

Parental authority refers to the legal rights and responsibilities parents have over their minor children, allowing them to make decisions regarding the child’s upbringing, education, healthcare, and general welfare. The scope of parental authority is broad but not unlimited, as it must be exercised in the best interests of the child and can be terminated or restricted by the court in cases of abuse, neglect, or unfitness.

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Attribution of parental authority in case of divorce

To better understand this section, we explain the difference between ownership and exercise of parental authority.

As a general rule, the ownership and exercise of parental authority correspond to both parents jointly.

Below we will see the differences between ownership and exercise of parental authority.

Ownership of parental authority

It is inherent to motherhood or fatherhood. That is, by being a father or mother, ownership of parental authority is acquired.

However, it is possible to deprive one or both parents of parental rights (we will see this later).

Exercise of parental authority

It consists of the power to decide on matters of parental authority.

Among others, the exercise of parental authority includes the following issues:

  • Education of children.
  • Schooling or change of school.
  • Children’s trips.
  • Address change.
  • Making decisions about your health.
  • Administration of children’s assets.

To make decisions on these issues, both parents must agree. During the marriage, there is usually no problem making decisions regarding children.

In case of disagreement, either parent may go to the Judge. The Judge will hear the parents and children over 12 years of age and attribute the power to decide to one of the two parents.

If the disagreements are repeated or there is some cause that justifies it, the Judge may attribute total or partial parental authority to one of the parents or distribute the functions between them. This measure may not exceed 2 years.

Forms of attribution of parental authority in divorce

1. Joint attribution of parental authority

As a general rule, the majority of Courts adopt the decision to attribute the ownership and exercise of parental authority to both parents.

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After the breakup, the parents must act in common agreement in aspects related to parental authority (education, health, travel…), always watching over and seeking the interest of the minor.

If there is disagreement, after the divorce, either parent may go to Court, as we have said before.

2. Attribution of the exercise of parental authority to one of the parents

4. The parents may agree in the regulatory agreement or the Judge may decide, for the benefit of the children, that parental authority be exercised totally or partially by one of the spouses.

As we have already seen, the exercise of parental authority implies the possibility of participating in making decisions about the lives of one’s children.

This power to make decisions may be attributed, by agreement of the parents or court decision, exclusively to one of the parents. Or, be partially attributed to the parents.

For example, if one of the parents lives abroad, they may agree with the other that they exercise exclusive parental authority. Maintaining ownership of it.

Likewise, the Judge may attribute the exclusive exercise of parental authority to one parent if the other, for example, has shown little economic and moral involvement with their child.

  • In the exclusive exercise of parental authority: The parent who exercises it may unilaterally make decisions related to parental authority. In this case, the other parent will have the right to visit the children, have them in her company, and have the obligation to provide food.
  • In the partial exercise of parental authority: The functions inherent to it are distributed among the parents.

To make any decision regarding the exercise of parental authority, the benefit of the minor must always be taken into account.

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In short, both parents retain ownership of parental authority but not the joint exercise of it.

3. Attribution of ownership and exercise of parental authority to one of the parents

The ownership and exercise of parental authority may be attributed to one of the parents in cases of deprivation of parental authority.

In a judicial procedure for separation, annulment, or divorce, the deprivation of parental authority may be agreed upon by ruling.

This measure cannot be agreed upon in a mutual agreement procedure.

The parent who files the divorce petition will request, as a definitive measure derived from the contentious divorce, the deprivation of parental rights to the other parent.

You must prove that the defendant seriously and repeatedly fails to comply with the duties of parental authority and that the deprivation is beneficial for the interest of the minor.

However, only in extreme cases does our law provide for the deprivation of parental rights to one of the parents:

Any of the parents may be totally or partially deprived of their power by a ruling based on non-compliance with the duties inherent thereto or issued in a criminal or matrimonial case.

The Courts may, for the benefit and interest of the child, agree to the recovery of parental authority when the cause that caused the deprivation has ceased.


What is the parental separation theory?

Parental separation theory states that children require access to both parents for optimal development and that restricting access can be emotionally traumatic with long-term consequences.

What are the problems with separated parents?

Common problems children face with separated parents include loyalty conflicts, unstable home environments, reduced parental attention and involvement, and ongoing parental conflict or tension.

What can cause family separation?

Reasons that can lead to family separation from children include domestic abuse, substance abuse issues, incarceration, deportation, death of a parent, divorce, or child welfare system intervention.

How do you deal with a separated parent?

Tips for children dealing with a separated parent include maintaining regular communication, not taking sides in parental disputes, finding healthy outlets like counseling or support groups, and focusing on the relationship with each parent.

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