Legal guardianship is the responsibility granted to a parent, grandparent or any other person, for taking care of a minor. It can be granted to an individual or a legal entity as a consequence of a judicial decision arising from a divorce proceeding, judicial or de facto separation, abandonment, abuse or for any other motive, as deemed appropriate by a court of law.
Granting legal guardianship of a minor was created with the purpose of protecting minors that have been deprived of their family environment and, to a certain extent, make up for the absence of one or more parents or tutors.
In the Dominican Republic, granting legal guardianship or custody of a child is a process regulated by Law 136-03, dated July 22, 2003, which created the Code for Protection of Children and Adolescents in the Dominican Republic. For legal guardianship cases, the competent court to decide about custody matters will be the Children and Adolescents’ Court where the legal guardian resides. In the event child custody is requested in a divorce procedure, the competent Court will be the Civil and Commercial Chamber of the First Instance Court in charge of family matters. Such court shall grant legal guardianship to either parent or a third party that would best guarantee the child’s or adolescent’s well- being according to the child’s best interests.
When a court of law grants legal guardianship, either to one of the parents or a third party, such appointed guardian must provide to the child moral, financial and educational support.
Both parents may be stripped of their respective guardianship rights in which case the minor still has the right to have contact with them and to maintain a relationship with them, as long as it is not detrimental to the child and it does not adversely affect the child’s best interests, which is one of the most important principles of Law 136-03. The judge granting legal custody to one of the parents, must determine if the other parent qualifies to visit the minor.
Accordingly, even when one of the parents is stripped of such guardianship rights, they will retain their obligations with respect to providing child support, in accordance with their economic situation.
The guardianship process begins with a conciliatory phase, in which the interested parties must attend a meeting with the Public Defendant of Minors and Adolescents to see if an agreement can be reached. In case the parties do so successfully, the public defendant shall prepare a document of delivery of the minor, which will detail the rights and obligations of the guardian and the sanctions and penalties that shall be applied if such obligations are not fulfilled. The document prepared by the public defendant will, by itself, have no legal effect until obtaining a court decision validating the document.
In case the parties do not reach an agreement during this phase, the interested party may initiate a guardianship claim.
It is important to mention that both parents must be present during the legal guardianship request process, but the judge may accept a legal representative for one of the parties, after evaluating the reasons for such absence.
For every case, the judge must base its decision on the best interest of the minor. The father or mother seeking to hinder the application or violate the provisions of a court order may be sanctioned with imprisonment.
Finally, being the legal guardian of a minor and having visitation rights may be revoked by the court, as long as it is requested by the interested party or by the public defendant of children and adolescents or the National Council for Childhood and Adolescence (CONANI) as long as it is in the best interest of the child.