Custody order non-compliance in Portugal: what you can do

Non-compliance with parental responsibilities — incumprimento das responsabilidades parentais (breach of the custody arrangements) — occurs when one parent violates the regime established by a court-ratified agreement or judicial decision: failing to hand over the child, obstructing contact, not paying child support, or unilaterally deciding matters of particular importance. The other parent may apply to the court for the non-compliance procedure under article 41 of the RGPTC, Portugal's General Regime for Civil Guardianship Proceedings.

This article explains what counts as non-compliance in practice, how the procedure unfolds step by step, which sanctions are possible, and which specific mechanisms exist when the breach concerns child support.

Key points

• There is non-compliance whenever the custody arrangements — residence, contact, child support or joint decisions — are not respected.
• The proper procedural route is the non-compliance procedure under article 41 of the RGPTC (Law no. 141/2015).
• The court can order compliance and impose a fine of up to twenty procedural units of account, plus an award of damages.
• Repeated non-compliance may justify modifying the custody arrangements and, in the most serious cases, may constitute a criminal offence.
• For unpaid child support: direct deduction from wages (article 48 of the RGPTC), special maintenance enforcement proceedings, and the FGADM state guarantee fund.
• Non-payment of child support does not authorise cutting off visits — nor the reverse.

What counts as non-compliance

Any relevant violation of the arrangements in force — whether a court-ratified agreement or a judgment — counts as non-compliance. The most frequent situations fall into three groups:

• Contact and handovers — the resident parent fails to hand over the child on the agreed days or invents successive obstacles, or the visiting parent repeatedly misses contact, disrupting the life of the child and of the other parent.
• Child support — non-payment, partial payment or systematically late payment of the maintenance fixed, or refusal to share the agreed health and education expenses.
• Matters of particular importance — one parent decides alone what should be decided by both: a change of school, significant medical interventions, or relocating the child abroad.

Isolated and justified situations — an illness, an unforeseen event that was communicated — are not, as a rule, treated as non-compliance. What the court sanctions is the unjustified or repeated violation of the arrangements.

The non-compliance procedure (article 41 of the RGPTC), step by step

The non-compliance procedure (incidente de incumprimento) is the proper procedural means of reacting: either parent — or the Public Prosecutor's Office — may ask the court to take the steps necessary for coercive enforcement and to order the non-compliant parent to pay a fine and damages. In practice, the procedure unfolds as follows:

• 1. Gather evidence — before moving forward, document the non-compliance: messages and emails, a record of dates and missed obligations, bank statements showing the unpaid support, witnesses to the failed handovers.
• 2. Application to the court — the procedure is filed with the court where the custody proceedings are or were pending or, if the arrangements were established at the Civil Registry Office, with the competent court of the child's residence, setting out the facts and attaching the evidence.
• 3. Parents' conference or response — the judge summons the parents to a conference or, where one is not held, notifies the respondent to submit a response; the judge may also order a specialised technical hearing or mediation to try to restore the working of the arrangements.
• 4. Decision — if no agreement is reached, the court decides: it orders compliance with the arrangements, imposes a fine on the non-compliant parent and, where the requirements are met, awards damages in favour of the child, the applicant parent, or both.

Possible sanctions: fine, damages and modification of the arrangements

The court may impose on the non-compliant parent a fine of up to twenty procedural units of account and order them to compensate the losses caused — the expenses of a wasted trip for a failed handover, for example, or the non-pecuniary harm caused to the child and to the other parent (article 41(1) of the RGPTC).

Beyond the sanctions, repeated non-compliance is frequently the sign that the arrangements have stopped working — and it can ground an application to modify the custody arrangements (article 42 of the RGPTC), including a change of the child's residence in the most serious cases of obstruction of contact. In cases that meet the statutory elements, repeated and unjustified conduct that significantly refuses, delays or obstructs the child's handover or reception may constitute the offence provided for in article 249 of the Portuguese Criminal Code.

Unpaid child support: enforcement and the FGADM

When the non-compliance concerns child support, the law provides specific collection mechanisms, which can be combined with the article 41 procedure. The court can order the direct deduction of the maintenance from wages, pensions, rents or other periodic payments received by the debtor (article 48 of the RGPTC) — the most expedient route when the debtor has known, regular income. Alternatively or in addition, special maintenance enforcement proceedings (execução especial por alimentos) can be brought to compulsorily collect the amounts owed.

Where the debtor effectively does not pay and the child's household has a low income, the Guarantee Fund for Maintenance Owed to Minors (FGADM, Law no. 75/98) can be activated: the court sets a substitute payment, paid by Social Security until the debtor resumes payment — as a rule, until the child reaches adulthood. We explain the requirements, the amounts and the full child support regime in our guide on child support in Portugal.

Is the process urgent?

The non-compliance procedure is not, as a rule, classified as urgent, but the RGPTC contains relevant safety valves: civil guardianship proceedings continue to run during court vacations where delay could harm the child's interests (article 13 of the RGPTC), and the court may, at any stage of the case, set provisional arrangements (article 28 of the RGPTC) — for example, to immediately re-establish interrupted contact. In contexts of domestic violence, the special regime of article 1906-A of the Portuguese Civil Code and the urgent custody regulation provided for in article 44-A of the RGPTC also apply.

In any scenario, the available response depends on the evidence and on the appropriate procedural route.

FAQs

What is non-compliance with parental responsibilities?

It is the violation, by one of the parents, of the arrangements established by a court-ratified agreement or judicial decision: failing to hand over the child, obstructing contact, not paying child support, or unilaterally deciding matters of particular importance. It allows the other parent to apply to the court for the non-compliance procedure under article 41 of the RGPTC.

What can I do if the other parent does not comply with the visits?

Document the failures (messages, dates, witnesses) and apply to the court for the non-compliance procedure under article 41 of the RGPTC. The court summons a parents' conference and can order compliance with the arrangements and order the non-compliant parent to pay a fine and damages. Repeated non-compliance may also justify modifying the custody arrangements.

What is the fine for non-compliance with parental responsibilities?

Article 41 of the RGPTC provides for the non-compliant parent to be ordered to pay a fine of up to twenty procedural units of account and, where the requirements are met, damages in favour of the child, the applicant parent, or both. The specific amount is set by the court according to the seriousness and the repetition of the non-compliance.

Can I suspend the visits if child support is not paid?

No. Contact and child support are independent obligations: non-payment of the maintenance does not authorise suspending the visits, nor the reverse. A parent who obstructs contact because of unpaid support falls into non-compliance themselves. The correct route is to activate the mechanisms for collecting the maintenance owed.

Is non-compliance with parental responsibilities a crime?

It can be. Repeated and unjustified non-compliance with the contact arrangements or refusal to hand over the child may constitute the crime of child abduction (article 249 of the Portuguese Criminal Code); non-payment of child support, where the debtor is in a position to pay, may constitute the crime of breach of the maintenance obligation (article 250 of the Criminal Code).

What if the breach concerns child support?

In addition to the article 41 RGPTC procedure, you can request the direct deduction of the maintenance from the debtor's wages, pensions or rents (article 48 of the RGPTC), bring special maintenance enforcement proceedings and, where the debtor does not pay and the child's household has a low income, activate the Guarantee Fund for Maintenance Owed to Minors (Law no. 75/98).

Is the non-compliance procedure urgent?

The procedure is not, as a rule, classified as urgent, but civil guardianship proceedings continue to run during court vacations where delay could harm the child's interests (article 13 of the RGPTC), and the court may set provisional arrangements at any stage of the case (article 28 of the RGPTC) where the situation requires it.