Loss or suspension of parental authority (patria potestad) in Peru

Two different outcomes people often mix up: suspension and loss

The Code of Children and Adolescents (Law N.° 27337) sets out two different consequences for parental authority (patria potestad) when a parent fails to meet their duties, and confusing them leads to the wrong expectations about what can be recovered and what can’t.

Suspension (Article 75) is temporary. For as long as the ground that caused it lasts, the parent doesn’t exercise parental authority, but Article 78 lets them request restitution once that ground ends — subject to the judge evaluating whether it’s in the child’s best interest.

Loss or termination (Article 77) is permanent. The Code provides no mechanism to recover it once declared. It’s worth noting that Article 77 groups two very different kinds of situations under one heading: on one hand, neutral facts that simply end parental authority because it no longer makes sense for it to continue (the death of either party, the child reaching the age of majority, or the child’s incapacity ending under Article 46 of the Civil Code); on the other hand, the real cases of loss due to parental fault: judicially declared abandonment, a conviction for an intentional crime against the child, or repeating one of the more serious suspension grounds.

The seven grounds that suspend parental authority

Article 75 suspends parental authority in these seven cases:

1. Civil incapacitation of the parent (for example, a legal incapacity declared for reasons unrelated to criminal law).
2. Judicially declared absence of the parent.
3. Corrupting the child through orders, advice, or example.
4. Allowing the child to be a vagrant or dedicating them to begging.
5. Physically or mentally abusing the child.
6. Refusing to pay child support.
7. Separation or divorce of the parents, or the marriage being declared invalid, under Articles 282 and 340 of the Civil Code.

The nuance almost no one explains well: not every divorce suspends parental authority

The seventh ground causes constant confusion, because the Code itself clarifies it in the very next article. Article 76 states, without qualification, that “in cases of uncontested separation and the divorce that follows it, neither parent is suspended in the exercise of Parental Authority.”

This means Article 75.g does not apply to a mutual-consent divorce (an uncontested separation followed by divorce). It applies instead to a fault-based separation or divorce — meaning one caused by one spouse’s misconduct — and to a marriage being declared invalid. Which path a divorce took determines whether parental authority is suspended by that fact alone or remains fully in force for both parents.

The six grounds for permanent loss

Article 77, in its current version in force since 2001 (as amended by Law N.° 27473), terminates or loses parental authority for:

• Death of the parents or of the child.
• The adolescent reaching the age of majority.
• Judicially declared abandonment.
• Having been convicted of an intentional crime against the child or to the child’s detriment.
• Repeating the grounds in subsections c), d), e) and f) of Article 75 — that is, corrupting the child, allowing vagrancy or begging, abusing the child, or refusing to support them, after already having been sanctioned for the same conduct.
• The child’s incapacity ending, under Article 46 of the Civil Code.

Of these six, only three penalize the parents’ conduct: judicially declared abandonment, the criminal conviction, and repetition. The other three are, in essence, the natural end of a legal relationship that has already served its purpose.

The central finding: not even a terrorism-related criminal case is enough on its own

For a time, subsection h) of Article 75 — added by Law N.° 30963, published in 2019 — allowed parental authority to be suspended based solely on a criminal case being opened against a parent for terrorism offenses under Legislative Decree 25475. The Constitutional Court declared it unconstitutional in Sentencia 370/2022 (Expediente 00005-2020-PI/TC, dated November 8, 2022), stating in the operative part that the claim was upheld regarding that phrase, “al no ser suficiente la mera apertura del proceso para que proceda la suspensión de la patria potestad” (“since merely opening the proceeding is not sufficient for the suspension of parental authority to proceed”).

That’s why the current text of Article 75 no longer contains that subsection h): only the original seven grounds listed above remain. The principle behind this ruling is consistent with the rest of Article 77: a final conviction can support loss of parental authority (Article 77.d), but a mere complaint or an ongoing investigation cannot. The presumption of innocence protects a parent under investigation until there is a judgment.

Who can request it, and before which court

Article 79 does not limit standing to request suspension or loss to the other parent. The list is broad: parents, ascendants (grandparents), siblings, the child’s caretakers, or anyone with a legitimate interest. In practice, this authorizes a close relative, whoever has de facto care of the child, or the Public Prosecutor’s Office acting on its own initiative when it learns of a risk situation.

The case is handled by the specialized Family Court judge. Article 160 expressly assigns the judge jurisdiction over cases of “suspension, loss or restitution of Parental Authority,” and Article 161 points to the Proceso Único regulated within the same Code (Chapter II, Title II, Book Four), applying the Code of Civil Procedure as a supplementary source when needed.

What the judge can order while the case is pending

Article 80 gives the judge two concrete powers that apply even before the final ruling:

• Placing the child in the care of a family member or a suitable person, if necessary, with the Public Prosecutor’s Office informed — without waiting for the process to end.
• Setting the child-support payment owed by the responsible parent in the ruling itself. This confirms that the child-support obligation does not depend on keeping parental authority: a parent can lose it or have it suspended and remain obligated to financially support their child.

If the child has their own assets, the same article points to the Civil Code’s rules for administering them — in practice, the guardianship (tutela) rules.

How suspended parental authority is restored — and why loss has no such path

Article 78 applies exclusively to suspension: the parent can request restitution once the ground that caused it ends, but it isn’t automatic. The judge must evaluate whether restitution is advisable under the best interest of the child principle, meaning it can be denied even if the original ground no longer exists, if the judge considers it’s not what’s best for the child at that point.

For loss under Article 77, the Code provides no equivalent article. Once loss has been declared for abandonment, conviction, or repetition, there is no path within this Code to recover parental authority over that child.

What to do

If you’re considering requesting the suspension or loss of someone else’s parental authority, first place your situation within either list — Article 75 or Article 77 — since that determines whether the outcome is reversible and how serious the facts you can prove need to be. If you’re worried your own parental authority is at risk because of a divorce, check whether your separation was uncontested or fault-based: only the latter can trigger the ground in Article 75.g. And if the case has already moved forward and the judge must decide provisionally who the child stays with, remember that child support is set in the same ruling and doesn’t disappear even if you lose parental authority.

Parental authority presupposes that filiation is already established

Before suspension or loss can be discussed, a legally recognized filiation link must exist between the parent and the child. If recognition is disputed, see the judicial process in establishing paternity in Peru outside marriage.

What about custody of the child while all of this is being resolved?

Suspending or losing parental authority is not the same as losing custody, although in practice they often go together. See how custody and visitation are decided, including the 2022 reform, in child custody and visitation rights in Peru.

If the abuse involves family violence, there’s a faster, more specific path

When the ground for suspension is physical or mental abuse under Article 75.e, a complaint under Law N.° 30364 usually also applies, with 24- and 48-hour deadlines for issuing protection measures — much faster than a parental-authority suspension case. See how to file a complaint in reporting family violence in Peru.

If the child has assets or a future inheritance involved

When the loss or suspension of parental authority involves administering assets a parent left or plans to leave a minor child, the guardianship rules over those assets intersect with inheritance rules. See the specific precautions in leaving property to a minor child in Peru.