La tenencia en igualdad de derechos y condiciones de los padres.

Abstract

The custody of children within the Ecuadorian regulations is found in the Organic Code of Childhood and Adolescence in art. 118, following the rules of art. 106 and it is precisely here where discrimination and violation of rights take place, giving preference to the mother over the father. Therefore, it is necessary to point out that there are laws that deal with the principle of the right to equality and therefore it is determined that every person is equal before the law and will enjoy the same rights and duties. The Constitution clearly recognizes and guarantees equality and non-discrimination, whether due to gender, race, religion, economic position, etc., and in this way there is no contradiction. This work also emphasizes the judgment of the Constitutional Court No. 28-15-IN/21, which declares the unconstitutionality of article 106, numerals 2 and 4 of the CONA, where it was mentioned that the mother will be "preferred" possession of the child under twelve years of age, clearly showing the discrimination against the father. Although it is true that this sentence promotes the equal rights of parents, but on the other hand we find ourselves with a deficient justice system at the time of applying said resolution and preponderating the rights of both parents without discrimination and without violating legal equality. Specifically in terms of measures, means and resources that lead to guarantee and make effective this right. For which my proposal focuses on the fundamental and determinative role played by the technical team of the specialized units through the investigation report, both psychological and social, regarding the situation of the child or adolescent and in which the judge finds the grounds for determining tenure.