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Of The Alternate Residence Of Minors With The Progenitors

(Confirmation and deepening of the paradigm shift with the legislative change verified with the publication of Law No. 65/2020 of 4 November 2020)

Law No. 65/2020 was published in Diário da República dated November 4, 2020, which will come into force on December 1, 2020, which amends the Civil Code and establishes the conditions under which the Court can decree alternate residence to minor child in case of divorce, legal separation of persons and property, declaration of nullity or annulment of the parents' marriage.

The referred Law No. 65/2020 reinforces the trend that has been verified in the last years of favoring the alternate residence of the minor with his/her parents, in order to guarantee a more balanced level of living with both parents and their families (including grandparents, uncles and cousins) and, thus, enable a healthy development of the child in affective and psychosocial terms.

The legislator has been trying to reduce the imbalance that existed between the role of the parent who had custody of the child - historically we have verified that it was tendency to be the Mother - and the other parent who only lived with the child on alternate weekends and, eventually, dinner one or two days a week.

It has been the understanding, both of the legislator and of the prevailing jurisprudence, that if both parents are equitably and evenly involved in the child's life, he/she will benefit from a fuller life and from a more sustained development both at a psychological, family and social level.

 

With the best interest of the minor in mind and, as well, based on this new paradigm that sees the role of both parents as preponderant for the healthy development of the minor, the legislator, in the referred Law No. 65/2020, added the possibility for the Court to determine the minor's alternate residence, even if there is no mutual agreement between the parents in this regard.

Once again, in view of proportionality and an equitable judgment between the contributions of both parents to support the child, the aforementioned Law also added the possibility of fixing a maintenance payment even if we are facing a situation of residence alternated, in order to ensure that the child always maintains the same standard of living, regardless of the parent with whom he/she spends the week.

The last change introduced by Law No. 65/2020 was the possibility of hearing the minor, provided that he/she has the capacity to understand the issues under discussion, taking into account his/her age and maturity and respecting the provisions of article 5 of the General Regime of the Civil Guardianship Process with regard to how the hearing of the minor should be carried out.

 

In short, Law No. 65/2020 deepens the path towards ensuring a greater balance and preponderance of both parents in their children's lives.

Author: Iva Pinto de Carvalho

Date: 310-11-2020

Contacts: elisabetebasto@bsa-advogados.com and ivapintocarvalho@gmail.com