October 11, 2007

Legal Rights and Responsibilities of Parents in Peru
Bangkok, Thailand

In an attempt to better understand exactly what my legal responsibilities and liabilities are regarding the upcoming birth of my son in Peru, my family reached out to contacts in South America.

What returned was a document so full of legal jargon I had to sit down with Tatiana to help me translate it. Even she, a Spanish speaker by birth, was having a hard time cutting though the verbose legal wording.

Impressions and Questions

After much effort, I feel like I've been given me a good overview of what the rights and responsibilities of a parent (and child) are in Peru, but have unanswered questions that pertain to couples that are out of wedlock, including how my non-Peruvian status mixes things up.

What rights do I have as a non-Peruvian citizen to reside in Peru, given I have a child that is a citizen of the country? Will I need to do a border run every 90 days to renew my passport stamp? Is there a maximum number of days that I can remain in Peru for a given year (countries like Thailand and Brazil only allow stays for a total of 180 days per year).

If Tatiana wants to fly with the child to Chile to see her mother's family, does she need to have a notarized letter with my consent? I recall a close call with such things when dad took my bother and I on a trip to Mexico while my brother was still under age 18. Tatiana recalls a similar problem with a flight many years ago to Chile, when her mother was flying with one of her underage sisters and without her father. Does all this still apply, even if we're not married?

Rights and Duties of Parents in Peru

I'm a big fan of information sharing, so I'm posting the document I was sent in the hopes it can be useful to others searching on the same or a similar topic. Although the doc is written in Spanish, we've taken the time to roughly translate the structure of the document for English speakers (in the hopes that it can at least provide a starting point for further translation).

The term Patria Potestad, which has no particular translation in English (that Tatiana and I are aware of), is explained in the document as a "complex group of rights, duties, and obligations" for both parents. According to the document, these responsibilities were at one time only affiliated with the father, but Peruvian law has changed in recent years to also include the mother.

The Rights and Duties of Parents in Peru, in MS Word format.

Table of Contents, in English

  1. Concept
  2. Characteristics
    1. Rights and Duties
    2. Foundation of Rights and Constitutional Reference
    3. Practice of Patria Potestad, in and out of Wedlock
  3. Function of Patria Potestad
  4. Contents of Patria Potestad
    1. Personal Rights and Duties
      1. Child Support
      2. Direction of the Educational Process, According to Capacity and Aptitude
      3. Child Development, Correction, and Helping Parents
      4. Child Custody and Contacting Authorities for Recovery
      5. Representing Minors in Their Civil Life
    2. Patrimonial Rights and Duties
      1. Parents' Administration
      2. Fruits of Labor, and Use by the Parents
  5. End of Parental Use and Administration
  6. Suspension of Patria Potestad
  7. Termination of Patria Potestad
  8. Family Colocation During Judicial Proceedings Regarding Suspension and Termination of Patria Potestad
  9. Continuation of Child Support in case of Suspension of Patria Potestad and Determination of Third-Party Administrator
  10. Custody of Children and Adolescents
    1. Legally Qualifications and Requirements to Request Custody
    2. Parents' Inability to Request Custody
    3. Circumstances to be Considered when Determining Custody
    4. Provisional Custody
    5. Variations of Custody
  11. Visitation
    1. Concept
    2. Extension of Visitation
    3. People Legally Allowed to Request Visitation and Requirements
    4. Cautionary Actions
    5. Actions in the Event of Non-Compliance

Tabla de Contenidos, en Español

  1. Concepto
  2. Características
    1. Derecho y deber al mismo tiempo
    2. Derecho con fundamento y marco constitucional
    3. El ejercicio conjunto de la patria potestad, tanto matrimonial como extramatrimonial
  3. Función de la patria potestad
  4. Contenido de la patria potestad
    1. Derechos y deberes personales
      1. Sostenimiento
      2. Dirección del proceso educativo, conforme a su capacidad y aptitudes
      3. Formación personal, corrección moderada y ayuda de los hijos a los padres
      4. Tenerlos en su compañía y recurrir a la autoridad si fuere necesario para recuperarlos
      5. Representarlos en los actos de la vida civil mientras no adquieran la capacidad de ejercicio y responsabilidad civil
    2. Derechos y Deberes patrimoniales
      1. Administración de los padres
      2. Frutos y productos, usufructo de los padres
  5. Fin del usufructo y de la administración paterna
  6. Suspensión de la patria potestad
  7. Extinción de la Patria potestad
  8. Colocación Familiar en procesos judiciales de suspensión y extinción de la patria potestad
  9. Subsistencia de la obligación alimentaría en caso de suspensión de la patria potestad y determinación de curador de bienes
  10. De la tenencia del Niño y el Adolescente
    1. Legitimidad para solicitar la tenencia y requisitos
    2. Impedimento de los padres para solicitar la tenencia
    3. Circunstancias que deben ser tomadas en cuenta al momento de la determinación de la tenencia judicial
    4. Tenencia provisional
    5. Variación de la tenencia
  11. Régimen de visitas
    1. Concepto
    2. Extensión del régimen de visitas
    3. Personas legitimadas para solicitar la demanda por régimen de visitas y requisitos
    4. Medidas cautelares
    5. Acciones frente al incumplimiento

Comments:

Maya

November 1st, 2007

Patria potestad is a term used to clarify that every person has the right to be part of a nation. Patria means Homeland, so the thing is that if you give your child a nationality, becauseis his right, you also have some duties and rights for yourself.
Yes you need to sign a permision to take the baby out of Perú if you are not coming, thats is something that you have to do even if you are Peruvian. But, you can have a notarized permission that can says that she can take the baby out of perú for more than one time.
In the same breath you should know if The states or Perù has double nationality, thatmeans Peruvian - merican is legaly accepted. If is not you should chose. Yo have your nationality by blood or by land, thats the 2 was of having it. By blood means you adopt the nationality of your parents or one of them (2 chinese having a baby in france… the baby is chinese by blood). But if you were borned in a country that is no yours you can also have the nationality by land.. see??
In case Americans doesnt admit the double nationality, you will have to choose.
Hope to see you soon, byeeee

Maya

November 6th, 2007

Hey.. i did some more research and i foud out that Patria Potestad is a term referred as the right of the father to administrate the goods and belonguings of the kid. In the same breath, i aldso found out that Both Perú and the States has what is called "yusoli" nationality (Yusoli, as latinn for "the land") so your child will be peruvian, not american regardless the father origin, and IF you want him to have the american nationality there´s some paperwork to be done.
The right for blood ("yusanguini") is valid in europe not here :(.
I can ask my lawer some more stuff too… just let me know…

The United States

Craig | travelvice.com

November 6th, 2007

Hi — it's a simple process… as outlined at the U.S. embassy page for Peru (http://lima.usembassy.gov/birth_abroad.html):

Birth Abroad

Reporting of Birth Abroad:

The birth of a child abroad to U.S. citizen parent(s) should be reported as soon as possible to the nearest American consular office for the purpose of establishing an official record of the child's claim to U.S. citizenship at birth. The official record is in the form of a Consular Report of Birth Abroad of a Citizen of the United States of America. This document, referred to as the Consular Report of Birth or FS-240, is considered a basic United States citizenship document. An original FS-240 is furnished to the parent(s) at the time the registration is approved.

Transmission of Nationality:

Birth to One U.S. Citizen and One Alien Parent:

A U.S. citizen parent may transmit citizenship if s/he has been physically present in the United States for a certain amount of time prior to the child's birth. For children born on or after November 14, 1986, the citizen parent must prove that s/he was physically present in the U.S. for five years, two of which were after age 14. It is important to recognize that the burden of proof is on the applicant. Physical presence may be proven by presenting a combination of records such as school transcripts, old and current passports, etc., to show that the physical presence requirement has been met.

Reporting the Birth:

A Consular Report of Birth can be prepared only at an American consular office overseas while the child is under the age of 18. The fee for the Consular Report of Birth is $65. Usually, in order to establish the child's citizenship under the appropriate provisions of U.S. law, the following documents MUST be submitted:
An official record of the child's foreign birth (the foreign birth certificate);
Evidence of the parent(s)' U.S. citizenship (e.g., a certified birth certificate, current U.S. passport, or Certificate of Naturalization or Citizenship);
Evidence of the parents' marital status; and
Affidavits and evidence of parent(s)' residence and physical presence in the United States.
In certain cases, it may be necessary to submit additional documents, including affidavits of paternity and support, additional evidence of physical presence, divorce decrees from prior marriages, or medical reports of blood compatibility. All evidentiary documents should be certified as true copies of the originals by the registrar of the office wherein each document was issued.

For more information, visit the Department of State's website on Consular Reports of Birth.
Obtaining a Passport for a Child Born Abroad

A child born abroad of one or two U.S. citizen parents, and who meets the documentary requirements outlined above, may also be issued a United States passport. Many parents apply for the Consular Report of Birth Abroad and a U.S. passport for their child at the same time. The passport requirements for children under the age of 14 are listed on the "Passports" page.
Additional detailed information about citizenship matters is also available from the Department of State's Citizenship and Nationality webpage.

The Consular Section in at the American Embassy in Lima is open for passport and registration services from 8:00 a.m. to 12:00 p.m., Monday through Friday, with the exception of U.S. and Peruvian holidays.

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