LA PATRIA POTESTAD: MODIFICACIÓN, SUSPENSIÓN, PRIVACIÓN, EXCLUSIÓN, RECUPERACIÓN Y EXTINCIÓN.

Abstract

Under Roman law, patria potestas was the power of the pater familias to exert a sort of subjective, quasi-public right over his children and descendants. Patria potestas now, however, is conceived as a "right/duty" or "right/function" that must be exercised by a parent to benefit his or her unemancipated underage children. It entails certain rights for parents, enabling them to discharge their duties to their children (Civil Code, article 154). Moreover, as a basic institution of society and the family, patria potestas cannot be transferred to another person or waived, and it never lapses. Ownership and exercise of patria potestas fall, as a general rule, jointly to both parents (dual patria potestas), without prejudice to individual exercise in certain cases. At all events, its exercise is subject to intervention and monitoring by judicial authorities and, where appropriate, by the administration. After reviewing these considerations, this paper focuses on looking at the different anomalous situations that may affect patria potestas. Such situations may affect the ownership and exercise of patria potestas: Exceptional measures may be taken by a court, such as stripping the parents of patria potestas when their behaviour involves gross, repeated breach of parent/child duties, endangering the comprehensive development of underage children; the court so doing will always bear in mind the interests and benefit of the children, and the parents may recover their patria potestas if and when the grounds for its removal disappear. Alternatively, patria potestas may be excluded; or the various cases established in article 169 of the Civil Code may be attendant, thus requiring the extinction of patria potestas. In other scenarios, the situation may affect only the exercise of patria potestas, which would entail a modification of patria potestas in certain cases and suspension in others. Exhaustive reference is made to the different positions espoused in doctrine and the most-significant court pronouncements in connection with the subject.