The separation or divorce of parents brings many difficult decisions. Among the most sensitive is the regulation of parental responsibilities: with whom will the child live? How will contact and time with each parent be organised? And, above all, what does the child think about all of this?
Portuguese law recognises that the child has the right to be heard in these proceedings, as it is their best interests that are at stake. But is this hearing always mandatory?
According to Portuguese law, a child should be heard whenever they have sufficient maturity to understand the matters involved. From the age of 12, the hearing becomes mandatory, as it is considered that by this stage, the child has the capacity to understand and reflect on decisions that directly affect them.
However, even before this age, the judge may decide to hear the child if it is understood that they demonstrate adequate maturity. The child’s participation is not simply another procedural formality — it is a central element to ensure that the court truly acts in the child’s best interests.
Even when there is an agreement between the parents regarding parental responsibilities, the child must still be heard.
For example, it is common to think that if the parents reach an agreement — for instance, in a divorce by mutual consent submitted at the Civil Registry — there is no longer a need to hear the child. But this is not correct.
Even in these cases, the process is referred to the Public Prosecutor’s Office, which can and should hear the child before approving the agreement.
This precaution ensures that the agreement truly reflects the child’s interests and not merely the (sometimes hasty or imbalanced) understanding reached between the adults.
The moment of the child’s hearing, whether in proceedings with or without agreement between the parents, is carefully prepared to ensure the child feels calm, safe, and understood. The session takes place in a private and welcoming environment, without the presence of the parents, and is accompanied by a specialised professional who explains, in a simple and age-appropriate way, what is at stake. Whenever they wish, the child can be accompanied by an adult they trust and may also request that their words remain confidential, which allows them to express themselves freely and without fear.
To further strengthen this sense of closeness and protection, the judge, public prosecutor, and lawyers present do not wear robes or formal attire, avoiding any scenario that might feel intimidating. The priority is to ensure that the child feels respected and heard, and can express their opinion freely, clearly, and without constraint. The exercise of this right must take place free from any pressures or environmental, physical, or psychological factors that might inhibit the genuine expression of their wishes.
In more complex situations — for example, when there is a conflict of interest between the parents and the child — it may even be necessary to appoint a dedicated lawyer to represent the child, ensuring that their rights are truly defended.
It is important to emphasise that what the child says does not automatically oblige the court to follow their opinion. However, their voice must always be considered when it aligns with their well-being.
Hearing the child is an essential evidential step in reaching a final decision based on their best interests. In fact, failing to hear the child when required by law can lead to the annulment of the court’s decision, which only underlines the importance of this right.
Listening to the child is more than simply complying with a legal requirement — it is about respecting their dignity, protecting their well-being, and ensuring they have an active role in decisions that shape their life. The child’s hearing is a fundamental right in proceedings regarding parental responsibility. More than a legal duty, it is a way to ensure that decisions truly reflect their best interests.
At Belzuz Abogados, S.L.P. Law Firm you can count on the legal support of experienced lawyers to ensure that the law is respected and that all parties’ rights are protected.