On August 2, the Chamber of Senators approved a project for shared ownership or called co-responsibility in parenting by 18 votes out of 30. Now it will go to the Chamber of Deputies to make it law or not.
What is joint tenancy?
It is a system of alternation or distribution of times and stays of the children with each of their parents, where both are jointly, periodically and rotatingly responsible for the care, attention and education of the children.
It implies coexistence, daily attention and affective containment. For this reason, it is said that it would be better defined with expressions such as co-responsibility in parenting or joint parental responsibility.
Basically it is physical or material possession, while parental authority refers to the set of rights and duties of parents.
In what cases is shared tenancy resolved?
Faced with the separation of parents or situations of parents who have never lived together, a co-parenting model is entered that recognizes the equal rights and responsibilities of both parents.
The Convention on the Rights of the Child establishes in art. 9.1 the obligation of States to ensure that the child is not separated from his or her parents, unless the separation is in the best interests of the child.
In Uruguay, the shared tenancy regime was established as a possibility by art. 177 Civil Code since the beginning of the 20th century, in the modifications that the divorce law of 1907 implied. In the current wording it is established that the agreements and judicial resolutions will entrust to one or both spouses or distributed among them, the possession of children. Provides for the possibility that the parents reach agreements on the situation of the children, and in case of lack of agreement, custody will be resolved by the Family Judge.
In other words, the shared care of the child is privileged, always to the extent that conditions exist for it to work, because it is the system that gives the greatest guarantee to the child’s right to have personal relationships and direct contact with both parents on a regular basis.
So, currently the law determines general guidelines given the impossibility of anticipating the different circumstances of real life, so that the operators (judges and lawyers) elaborate the solution of the specific case based on them.
It is necessary to keep in mind that there are three well-defined interests: that of the mother, that of the father, and that of the child or adolescent. And it is a duty of the Judge to consider this the last one as the superior and resolve the issue based on the evidence collected, assess them according to sound criticism, locating the best future scenario for the child.
What is the best interest of the child?
It is a legal principle that must guide all decisions made in relation to a child or adolescent, aimed at their well-being and full exercise of rights. It is a guarantee for the integral satisfaction of her rights.
The function of the best interests of the child in this context is to enlighten the conscience of the judge or the authority so that he makes the correct decision.
What are the benefits and drawbacks of shared tenancy?
It is known that both the mother and the father are equally important in the life of the child or adolescent.
So, there is no doubt that the main advantage is that the child can be in frequent and continuous contact with both parents.
Avoid the feeling of loss, fear of abandonment, conflicting loyalties, and guilt.
The principle of equality between parents is cultivated so that they can participate equally in the education of their children. Parents share the burdens implied by their role as such and therefore both must intervene jointly regarding the education, health and development of their children.
The suitability of the parents is not questioned. The preponderance of the figure of one parent over another disappears.
The cooperation and communication of parents is encouraged for the benefit of the children.
It is also true that shared ownership can have several drawbacks, mainly pointing out the instability of the children caused by the continuous change of address. Likewise, the co-responsibility and enjoyment of both parents is beneficial when the geographical proximity of the paternal and maternal homes makes it possible. It is also convenient not to divide time arithmetically. The collaboration and constant communication of parents in the school, family and social environment is necessary to maintain the same routines and habits. Otherwise it could cause some instability in minors. It requires more family organization.
Currently, the law provides for the possibility of unilateral custody, when that care is attributed to only one of the parents. The Childhood and Adolescence Code establishes recommendations or criteria when it is the Judge who must determine custody, such as: a) that the child must remain with the father or mother with whom he lived the longest; b) prefer the mother when the child is under 2 years old as long as it is not harmful to him; c) and he must listen to the child and take her opinion into account.
In conclusion, the possession of children in any of its modalities must guarantee the existence of the attention they require, and therefore achieve greater personal, affective and family stability.
Dr. Agustina Durquet
