The jurist Marco Ortiz says that the changes to the Constitutional Court are an advance in favor of the rights of minors and parents.
The Constitutional Court declared unconstitutional numbers 2 and 4 of article 106 of the Childhood and Adolescence Code, which established maternal preference when determining the custody of children. Now parents can also access custody in the case of divorce.
Attorney Marco Ortiz explains how this new sentence is applied and what it means for the rights of mothers, fathers and children.
In practice, how is this change applied?
As the sentence mentions, it came to modify the perpetuation of stereotypes, gender roles, it came to equalize the issue. What this sentence does is, in application of the principle of equality, declare unconstitutional what is pertinent to parental authority and the preference that existeda in the discussion of who is going to take care of the children. The mother was always preferred.
This is ambivalent. There are cases in which mothers have a certain economic position and also a suitable social environment to take care of their children and this is where it should be applied; but it was appropriate that this analysis be done impartially, that is to say that the law does not benefit mothers or fathers, but rather based on the study of the social technical office of the authorities, psychologists, social worker, and from that determine where the children are going to go. But this did not happen.
Can the sentence already be applied?
The sentence is immediately applicable, but it has certain issues on how the National Assembly should legislate. The Constitutional Court is a negative legislator, that is, it expels the legal order of the norms, but it cannot generate such broad normative sentences, but rather specific cases, it generates specific standards, which in In this case, equality between parents is respected, joint responsibility for the custody of children and adolescents is claimed.
In practice, in custody cases, the father may request that the technical office of the relevant judicial unit issue the report on the social environment of the children and the judge may decide on that basis.
Will it be easy for a parent to access the opinion of the Court?
The sentence is binding on all judges. Now, until the Judiciary Council generates a training logic for judges, and that they too, personally, can understand the significance of this ruling, it will take a while. These changes in the legal culture, such as those that the Court has had in recent years, will take time to implement.
What rather comes to have more preponderance is the day to day of lawyers in free practice. How we prove that a certain part has certain conditions so that it can be with the children.
What will be necessary to determine a change in custody or to determine that the father can access the custody?
First is the participation of the technical office of the judicial units, there the social worker, psychologist and others must have some specific consideration. Asking for additional expert opinions can also be an adequate way to say that one of the parents is not capable of caring. There are some serious cases, including psychological disability. Also ask for the theme of the income; In the event of the rupture, the children must, at least, preserve their economic level, their ability to study, access education, and health in an adequate way.
Is this an advance in equal rights?
Of course. What maternal preference did was perpetuate gender roles. There are cases in which the mother does not want to have the children – and that is fine, since not only mothers should have that role of care – and that is ratified by the sentence.
It is positive, because the exercise of paternity and maternity must be conscious, responsible and, through this new sentence, it is allowed to broaden the demand for women’s rights. Let us remember that historically they could not even manage the conjugal society, where the man was preferred. This is linked to the perspective that women are the ones who have caregiving roles and are the ones who have children.
These stereotypes are being broken lately. This sentence comes to put a blow on the table and say that motherhood and fatherhood are exercised with responsibility and should not be linked to gender roles. That the legislation has a certain preference for these care roles is a logic of perpetuation of stereotypes and therefore, rather, this preference linked to the fact that women are mothers is declared unconstitutional.
Why is the Court now issuing a judgment of this type?
Responds to an agenda linked to the vindication of women’s rights. In Latin America, since 2010, the feminist movement has been gaining strength in certain countries such as Argentina, Chile, Mexico. The classification of femicide or feminicide, depending on the legal system, is a clear example of this. The issue of abortion also, where the Court was one of the main actors to decriminalize it in rape cases, which are currently in the National Assembly implementing the relevant law, but the sentence is already applied. Respond to that context.
It is an important advance in terms of rights issues and it does not go far from this agenda that, at least, has three important points: fight against violence against women, greater political participation and disengage stereotypes from gender roles.
Does this sentence show that the ability to care for a child does not depend on gender?
Yes. The application of the sentence means that both the father and the mother have to put into consideration of the judge, when deciding the custody, what is the best option and who will best guarantee the rights of children and adolescents.
“This sentence comes to put a blow on the table and say that motherhood and fatherhood are exercised with responsibility and should not be linked to gender roles”.
