Peru

How can you prepare child relocation from or within Peru? What if your child has been relocated without your consent?

Peru is a Contracting State to the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Convention on Parental Responsibility and Protection of Children

We will explain what this means for your options.

Country Reporter:

Luis Raúl Serrano Arribasplata

Luis works at his law firm ‘Sarrano Law Firm’ in Peru, with a focus on international family law.

He has been studying the subject of child abduction for almost 2 decades.

Luis has volunteered to keep this page about Peru up to date.

Lawyers and mediators in Peru

Parental authority: Peru

Parental Authority

Parental Authority – in spanish “Patria Potestad” – is an institution that comprises a set of rights and duties, also known as attributes of unlimited number that Peruvian law recognizes to parents for the defense and care of the person and property of their minor children, which is in force over them until they acquire the age of majority, i.e. 18 years according to article 30 of the Political Constitution of Peru.

Even the parents are not married or divorced they will automatically have the parental authority mentioned in the paragraph before.

The relevant attributes that we consider for this presentation are the tenure and the power to decide which will be the country of residence of the minor.

Tenure
Tenure is one of the attributes of Parental Authority. This term, established in Peruvian law is understood as the power of parents to remain in the company of their minor children and take care of them. This term can be used as equivalent to custody, care and upbringing, custody, personal care, among others used by foreign legislation. Normally the tenure must be sharing between both parents, if they are not agreeing about that, the family judge decides share or sole custody based on the best interests of the child.

It is clear that this attribute is different from the power to decide which will be the country of residence of the minor, so even the minor travels to reside or for a short time, the parent who has the sole tenure doesn´t have the right to doing that the minor remain in the other country different from his or her habitual residence.

The power to decide which will be the country of residence of the minor: Attribute of Parental Authority
Parental authority also includes, among its attributes, the power to decide which will be the country of residence of the children, for which reason Peruvian family law has included, among its mandatory rules, the authorization of travel of a minor abroad regardless of the reason or the duration of the trip.

However, in the case that a Peruvian Judge has ordered that the Parental Authority be cancelled for a Parent, the other parent doesn´t need the travel permission from the parent whom his Parental authority was cancelled according with article 77.

If either of parents wishes to change the residence of minors or saying in other way relocated this residence, that is stated in Peru, to any other country he or she must have the consent of the other parent and, if that is not possible, it must be requested to the Judge of the Peruvian Judiciary.

The right of custody in the Hague Convention of Civil Aspects of Child Abduction: How does it fit in the Peruvian Law?
The “right of custody”, referred to in articles 3 and 5 (a) of the Hague Convention on the Civil Aspects of International Child Abduction, in the case of Peruvian Family Law, is immersed in only one of the attributes of Parental Authority (precisely in the power to decide which will be the country of residence of the minors and not in the tenure). The parent abductor goes against this this rule commonly through her or his conduct of retention of wrongful removal of their children from the territory of the country of their habitual residence to another country.

Peru is a contracting State to the 1980 Hague Convention on the Civil aspects of child abduction.

Summary of rules
Peruvian law related to Parental Authority and the power to decide which will be the country of residence of the minor.
Civil Code
Article 418
By parental authority, parents have the duty and the right to take care of the person and property of their minor children.

Children and Adolescents Code
Article 74
The duties and rights of the parents exercising parental authority are:
(a) To ensure their integral development;
(b) To provide their sustenance and education;
(c) Direct their educational process and job training according to their vocation and skills;
d) This literal was repealed on December 30, 2015.
(e) To have them in his company and to use the authority if necessary to recover them;
(f) To represent them in the acts of civil life as long as they do not acquire the capacity to exercise and civil liability;
(g) To receive assistance from them on the basis of their age and condition and without prejudice to their care;
(h) administer and use their property, where they have it; and
(i) In the case of products, the provisions of article 1004 of the Civil Code shall apply.

Article 75
Parental Authority is suspended in the following cases:
(a) For the interdiction of the father or mother arising from civil cases;
(b) For the judicially declared absence of the father or mother;
(c) For giving them orders, advice or examples that corrupt them;
(d) For allowing them to vagrant or engaging them in begging;
(e) For physically or mentally ill-treating them;
(f) For refusing to provide them with food;
(g) By separation or divorce of the parents, or by invalidity of the marriage in accordance with articles 282 and 340 of the Civil Code.
(h) For the opening of criminal proceedings against the father or mother for an offence to the detriment of, to the detriment of, his or her children or for any of the offences provided for in articles 107; 108-B, 110, 121-B, 122, 122-B, 125, 148-A, 153, 153-A, 153-B, 153-D, 153-E, 153-F, 153-G, 153-H, 153-I, 153-J, 170, 171, 172, 173, 174, 175, 176, 176-A, 177, 179, 179-A, 180, 181, 181-A, 182-A, 183, 183-A and 183-B of the Penal Code, or for any of the offences established in Decree Law 25475, which establishes the penalty for terrorist offences and the procedures for investigation, investigation and trial.
(i) By a declaration of temporary family protection of a child or adolescent.

Article 76
In the cases of conventional separation and subsequent divorce, neither of the parents is suspended in the exercise of parental authority.

Article 77
Parental Authority is extinguished or lost:
(a) Death of the parents or child;
(b) Because the adolescent acquires the age of majority;
(c) By a judicial declaration of family protection;
(d) Having been convicted of an intentional offence committed to the detriment of or to the detriment of his or her children or of the commission of any of the offences provided for in articles 107; 108-B, 110, 121-B, 122, 122-B, 125, 148-A, 153, 153-A, 153-B, 153-D, 153-E, 153-F, 153-G, 153-H, 153-I, 153-J, 170, 171, 172, 173, 174, 175, 176, 176-A, 177, 179, 179-A, 180, 181, 181-A, 182-A, 183, 183-A and 183-B of the Penal Code, or for any of the offences established in Decree Law 25475, which establishes the penalty for terrorist offences and the procedures for investigation, investigation and trial.
(e) For repeating the grounds set forth in Article 75 (c), (d), (e) and (f); and
(f) For ceasing the incapacity of a child, in accordance with article 46 of the Civil Code.

Traveling with children: Peru

Child relocation: Peru

Child abduction: Peru

Law related to the Treaties

Political Constitution of Peru
Article 55
Treaties concluded by the State and in force form part of national law.

Peruvian Civil Code: Private International Law of domestic source (rules referring to the application of international treaties on the international return of minors)
Article 2047
“The applicable law to regulate legal relations linked to foreign legal systems is determined in accordance with the relevant international treaties ratified by Peru …”

Hague Convention

Hague Convention of Civil Aspects of Child Abduction Private International Law of Conventional Source (international treaty on the subject of international restitution of minors)
Article 3
The removal or retention of a minor shall be considered unlawful:
(a) where they have occurred in breach of a right of custody conferred, separately or jointly, on a person, an institution or any other body, in accordance with the law in force in the State in which the child was habitually resident immediately before his or her removal or retention; and
(b) where this right was effectively exercised, separately or jointly, at the time of removal or retention, or would have been exercised in the absence of such removal or retention.
The right of custody referred to in (a) may result, in particular, from an attribution of right, from a judicial or administrative decision, or from an agreement in force under the law of that State.
Article 5 (a)
For the purposes of this Convention:
(a) the “right of custody” shall include the right to care for the person of the child and, in particular, the right to decide on his or her place of residence;

Peruvian Resources in Child Abduction cases

The parent has the chance to:
1) Hiring a private lawyer on behalf of article 29 of Hague Convention and goes to sue the abductor directly to the family judge asking the restitution of child, or;
2) Going to the respectively Central Authority for the application of Hague Convention in your country in order to bring to the Peruvian Central Authority the requesting Restitution File of the children.The Peruvian Central Authority is Dirección General de Niñas, Niños y Adolescentes del Ministerio de la Mujer y PoblacionesVulnerables.
3) Going to the Peruvian Central Authority directly to claim the restitution of the child.

Court procedure

The peruvian proceeding for the cases of child abduction in the peruvian court comprises three stages, according with the Civil Procedure Code and Children and Adolescents Code
1) The sole hearing after submitting the complaint. In this stage the judge analyzed the evidence and other allegations related to the jurisdiction and other proceeding requirements (before of family judge).
2) The appeal (before of superior court) if one of the parts are not agree with the decision in the first instance.
3) The cassation (before of supreme court) if one of the parts are not agree with de decision in the second instance.

When a child was abducted out of Peru

You have the chance to go to the Peruvian Central Authority to get information about the authorities in other countries or hire a lawyer with network and experience in the restitution of children from countries out of Peru.

For more details: check the country profile of Peru on the website of HCCH.

Criminal law : Peru

Relevant websites : Peru

Permission form to travel with children

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Implementing act

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Government website on Child Abduction:

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Central Authority

www.hcch.net : Peru Central Authority

Subsidized legal aid

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Blogs about Peru

Relevant case law in Peru