Criterios de regulación de la opinión del niño y adolescente en los juicios de tenencia en Ecuador.

Abstract

This task involves the analysis of one of the fundamental rights recognized in the Convention on the Rights of the Child, which must be exercised within custody legal proceedings, namely, the right of children and adolescents to express their opinions. This right implies the ability of the minor to form their own judgment and express their opinion, with the Judge responsible for evaluating it while respecting this right and its impact when deciding to whom to entrust their care. Article 106 of the Childhood and Adolescence Code in Ecuador regulates, in its last paragraph, the conditions for the exercise of this right in custody legal proceedings, also establishing its effects. The opinion of adolescents shall be mandatory for the judge; however, the opinion of children under twelve years old will be assessed depending on the minor's level of development. Nevertheless, the Judge may exceptionally not consider such an opinion if it goes against the best interests of the child. The Constitutional Court, in judgment No. 28-15-IN/21, which removes paragraphs 2 and 4 of Article 106 of the CONA that establishes rules for granting custody of minor children to parents, has set criteria that the Judge must apply in these cases. One of these criteria is the child's opinion; however, the parameters that the Judge should apply in this criterion are not established.