Chile: Information on child custody documentation through which the father grants complete custody of the child to the mother, including appearance and content (2016-November 2018) [CHL106205.E]

Information on child custody documentation was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

1. Child Custody
1.1 Legislation

The Chilean Civil Code (Código Civil) provides the following:

[translation]

Art. 225

If the parents live separately, they can determine by common agreement that the personal care of the children is the father’s or mother’s responsibility or it can be shared. The agreement will be granted by public deed or certificate issued before any official of the Civil Registry and must be sub-registered in the margin of the birth registration of the child within thirty days of it being granted. This agreement will establish the frequency and freedom with which the non-care parent will maintain a direct and regular relationship with the children and may be revoked or amended on the basis of the same formalities.

Art. 244

Parental authority will be exercised by the father or mother or both jointly, as agreed in an agreement registered by public deed or certificate issued before any official of the Civil Registry, which should be sub-registered in the margin of the birth registration of the child within thirty days of it being granted.

If there is no agreement, the father and the mother will jointly exercise parental authority.

However, parents may act separately for mere protective acts. With respect to other acts, joint action will be required. In case of disagreement between the parents, or when one of them is absent or impeded or is unjustifiably denied access, judicial authorization will be required.

In every case, when the interest of the child makes it absolutely necessary, at the request of one of the parents, the judge may entrust the exercise of parental authority to the father or mother who lacked the authority, or restrict it to only one of the parents if they exercise it jointly. Once the resolution has been executed, it will be sub-registered within the same period indicated in the first paragraph above.

In the absence of the father or mother who has parental authority, the rights and duties will be vested in the other parent.

Art. 245

If the parents are living apart, parental authority will be exercised by the person responsible for the personal care of the child, or by both, in accordance with article 225.

However, by agreement of the parents or judicial decision based on the interest of the child, parental authority may be assigned to the other parent or be restricted to one of them if they exercise it jointly. In addition, on the basis of equal interest, the parents may exercise it jointly. The rules on sub-registration provided for in the preceding article will apply to the agreement or judicial decision.

In the exercise of joint parental authority, the provisions of the third paragraph of the preceding article will apply. (Chile 2000)

According to sources, parental authority can be exercised jointly by both parents or by one of them, according to a mutual agreement (Chile 8 May 2013; Law Firm 5 Nov. 2018).

1.2 Procedures to Obtain Child Custody Documentation

In correspondence with the Research Directorate, a representative of JusticiayFamilia.cl [1] indicated that the requirements and procedures to obtain child custody documentation depend on whether or not the child custody arrangements are made through a mutual agreement between the parents or whether it is settled through a legal procedure (JusticiayFamilia.cl 26 Oct. 2018). According to the same source, when the parents agree for one of them to exercise sole custody and that they do not require the services of a lawyer, both parents will go to the Civil Registry and Identification Service (Servicio de Registro Civil e Identificación) and sign the necessary documents before one of its officials (JusticiayFamilia.cl 26 Oct. 2018). Without providing further information on the titles or features of these documents, the same source indicated that once these documents are signed, the child custody arrangement will be noted in the child's birth certificate (JusticiayFamilia.cl 26 Oct. 2018). In correspondence with the Research Directorate, representatives of a Chilean law firm with offices in Valparaíso and Santiago whose practice areas include family law, child custody and child protection, also stated that when the parents come to an agreement regarding custody, this is annotated on the birth certificate (Law Firm 5 Nov. 2018). The same source stated that the birth certificate is a public, official document that is issued by Chile's Civil Registry and Identification Service, can be obtained online by the authorized person, and has a seal and electronic signature to certify its authenticity (Law Firm 5 Nov. 2018).

The JusticiayFamilia.cl representative indicated that the other way to determine child custody arrangements is through mediation, in which case a lawyer makes a request for child custody before the competent family court (JusticiayFamilia.cl 26 Oct. 2018). According to the same source, both parties are able to state their case in a hearing, which is followed by a hearing presided over by a judge who decides which parent receives child custody (JusticiayFamilia.cl 26 Oct. 2018).

1.3 Authorizations Required to Travel Abroad with a Child

Concerning the authorizations required to travel abroad with a child, the Spencer Global Chile law firm [2] indicates the following on their website:

For parents or guardians, a child must have notarized authorization from both parents to enter or leave the country. Even when both parents are entering or leaving the country with the child, you should have a legalized copy of the child's birth certificate proving the parental link.

If only one parent is traveling with the child, the other parent must provide legal authorization for the [c]hild to leave the country. This authorization should be current, drafted by an attorney that specializes in international [c]hild custody matters and Chile, and must be notarized at a Chilean notary or consulate.

It should also be noted for parents that are divorced, and have some form of custody agreement, that full custody of a child granted to one parent may not be sufficient. The other parent may still have the right to deny permission to travel in to or out of Chile. (Spencer Global Chile n.d.a)

Similarly, the law firm representatives stated that the attribution of child custody does not permit, except in the event that the other parent has passed away, taking the child out of the country without the authorization of the other parent or without judicial authorization, as the case may be (Law Firm 5 Nov. 2018). According to the same source, the judicial authorization is granted by a family judge and must be issued in an official final, non-appealable and sealed judgment (Law Firm 5 Nov. 2018).

2. Appearance and Content of Child Custody Documentation

According to the JusticiayFamilia.cl representative, the judge's decision on the child custody hearing includes:

  • the seal of the Chilean Judiciary (Poder Judicial Chileno);
  • the name of the family court that provided the decision;
  • the name of the judge;
  • the electronic signature of the judge;
  • a [translation] "code" (JusticiayFamilia 26 Oct. 2018).

Further and corroborating information on the appearance and content of child custody documentation could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. Samples of child custody documentation could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes

[1] JusticiayFamilia.cl is a Chilean legal advice website whose areas of practice include family and divorce law (JusticiayFamilia.cl n.d.).

[2] Spencer Global Chile is a law firm comprised of Chilean attorneys and professionals "dedicated to providing legal and investment services exclusively to international clients in Chile" (Spencer Global Chile n.d.b).

References

Chile. 8 May 2013. ChileAtiende. "Asesoría judicial gratuita para obtener la patria potestad de un hijo." [Accessed 25 Oct. 2018]

Chile. 2000 (amended 2015). Código Civil. Excerpts translated by the Translation Bureau, Public Services and Procurement Canada. [Accessed 1 Nov. 2018]

JusticiayFamilia.cl. 26 October 2018. Correspondence from a representative to the Research Directorate.

JusticiayFamilia.cl. N.d. "Nuestro equipo listo para actuar por usted y a su favor siempre (asesoria legal profesional)." [Accessed 31 Oct. 2018]

Law Firm. 5 November 2018. Correspondence from representatives to the Research Directorate.

Spencer Global Chile. N.d.a. "Chile Child Custody Laws." [Accessed 1 Nov. 2018]

Spencer Global Chile. N.d.b. "Spencer Global - International Law in Chile." [Accessed 1 Nov. 2018]

Additional Sources Consulted

Oral sources: eight law firms in Chile that practice in the area of family law; lawyers specializing in family law in Chile; Universidad de Diego Portales – Centro de Derechos Humanos.

Internet sites, including: A&O Abogados Chile; Abogado Juicio Familia; Araya & Ojeda Abogados; Asociación de Abogados de Familia; BBC; BHC Abogados; Chile Forum; CNN; Derecho-Chile; ecoi.net; Horvitz & Horvitz; Manriquez y Benavides Abogados Ltda; The Siemon Law Firm; Solo Divorcios Chile – Abogados; Thomson Reuters; UN – Refworld; Universidad de Diego Portales – Centro de Derechos Humanos.