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International Family Law

The leading authority on international family law

21 NOV 2012

Chile - The issue raised in the case of minors when their parents relocate

Daniela Horvitz Lennon

In Chile, personal care (ie custody) of a minor is under the joint responsibility of both parents.[1] This care textually refers to the ‘rearing and education of the children,' but national legal doctrine has defined it as ‘the parental right to rear, educate and provide living quarters for the minor.'[2]

However, the law says: ‘If the parents have separated, the mother is responsible for personally caring for the children.'[3] In other words, the physical and alternative legal custody of the child is always incumbent on the mother.

One may modify this rule only if the mother voluntarily grants custody to the father or if a court declares the mother is incapable of caring for the child or because ‘the interest of the child makes this indispensable.'   

This rule becomes evident when deciding about children residence, because lawmakers have, to an extent given the mother the upper hand when it comes to caring for and making decisions in relation to the children. 


[1]              Article 224 of the Civil Code.

[2]              Decision by Santiago Court of Appeals, 31 October 2006.

[3]              Article 225 of the Civil Code.

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