The Assembly’s Child and Adolescent Protection Board asked for 180 more days to present the report of the second debate of Copinna
The ruling of the Constitutional Court (CC), which establishes equality between the father and the mother for the care of girls and boys, will be collected by the Commission for the Comprehensive Protection of Girls, Boys and Adolescents of the National Assembly that discusses the report for the second debate on the draft Organic Code for the Comprehensive Protection of Girls, Boys and Adolescents (Copinna).
This was anticipated by three legislators from the three political forces that have their delegates before the Commission for the Protection of Children of the National Assembly, which will ask for 180 more days to include the latest observations to Copinna, including the sentence issued by the CC.
On April 1, 2015, Farith Simon, Daniela Salazar Marín, Andrea Muñoz Saritama and Adriana Orellana Ubidia presented the action of unconstitutionality against numerals 2 and 4 of article 106 of the Childhood and Adolescence Code, because in their opinion the Norm violates the principle of equality and perpetuates stereotypes about the cultural role of women in a patriarchal society and contradicts the superior principle of children and adolescents.
The current Constitutional Court heard the case on July 9, 2019, and appointed Judge Enrique Herrería to continue the processing of the case.
What is challenged in article 106 of the Childhood and Adolescence Code, in force since 2003, determined as a rule that in order to entrust the exercise of parental authority, the judge will observe that in the absence of an agreement from the parents or if what is agreed by them is inconvenient for the superior interest of the son or daughter, the parental authority of those who have not reached the age of twelve will be entrusted to the mother, unless it is proven that this is prejudicial to the rights of the son or daughter.
If both parents show equal conditions, the mother will be preferred as long as it does not affect the best interests of the son or daughter.
The Court, on December 10, 2021, declared unconstitutional based on the merits of the sentences of article 106 of the Code of Childhood and Adolescence: “the parental authority of those who have not reached the age of twelve will be entrusted to the mothers” and ” the mother will be preferred, as long as it does not affect the best interests of the son or daughter ”.
Court declares unconstitutional preference for mothers for parental authority over children
It determined that the sentence bets on the need to combat gender stereotypes and inequality in the domestic environment, seeking compliance with parental co-responsibility, therefore, it is important to accelerate regulatory measures that seek real equality between men and women.
Salim Zaidán, professor of constitutional law, commented that the decision of the CC is the correct one and that it looks with moderate optimism, because in the end the Ombudsman’s Office is charged with developing regulations, when it is the National Assembly that legislates.
The sentence grants 90 days to the Ombudsman’s Office to prepare a report with the participation of social organizations that considers the parameters to grant the custody of girls and boys, and from there the Assembly would have one year to continue with the debate. of the Copinna, regarding matters related to the tenure order.
It clarifies that the Court did not decide anything on parental authority that refers to the rights and obligations that parents have in relation to their children, which has a patrimonial and economic dimension; but he did review what is related to tenure, it has to do with the execution of care tasks.
He insisted that it should be clarified that parental authority continues to be joint, exercised by the father and the mother, unless there is a judicial decision; and the custody that before the sentence was single parent, from now on it will no longer have the rule of preference or priority in favor of the mother, but on a case-by-case basis it will be decided which is the most suitable parent for care tasks.
He said that he hopes that something related to joint custody will be introduced in the Assembly debate, because the optimal thing would be that if both show an attitude of care, the judge should have the option of dictating joint custody.
Jorge Abedrabo, delegate of the PSC before the legislative table, announced that the sentence of the CC will be collected, regarding the tendency of the children, and that in the face of the decision of the judges of last instance, the extension of six months is necessary to that the table present a report for the second and final debate.
The important thing is to know that by failure of the highest constitutional control body it must be determined in the law that the custody can be of father and mother equally.
Lenin Lara, from the UNES bench, stated that it is possible to include the judgment of the Court, since it constitutes a struggle of the parents that it was not fair, but discriminatory that by law the parental authority was always established for the mother.
He specified that the inclusion of this constitutional ruling in the Copinna would balance the position of the parents against the girl, boy and adolescent.
Vanessa Freire, who works together with the National Agreement Group (BAN), highlighted that this issue of child custody has been the subject of several debates, and assured that the commission pressed the ruling of the Constitutional Court, in Regarding the pending sentence, because in the books that are analyzed a definition is needed.
He added that in the reform of Copinna, the superior right of boys and girls will prevail, because just as there are good fathers and mothers, there are also bad mothers and fathers, therefore, a balance must be had to support the family.
Freire highlighted the opportunity in which the sentence of the CC was issued, and it will surely be included in the Organic Code of Girls, Girls and Adolescents. (I)
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