El derecho del menor a ser consultado en el proceso de mediación en tenencia.

Abstract

The present research will explore the correlation between the principles of voluntariness, confidentiality, and the progressive autonomy of the child along with the principle of the best interest of the child concerning the allocation of custody and the lack of regulation for the child to be heard effectively. However, when it is voluntarily decided to submit the discussion of custody through this system, the Ecuadorian legislation does not provide criteria with which the child should be heard and who will be responsible for assessing that this opinion represents the best for the child. As established in the Code of Children and Adolescents, in an ordinary process, the perspective of the child or adolescent is essential for the judge's decision but given that the mediator only assists the parties in the conflict, there is a breach in the fulfillment of this rule in mediation. Therefore, it will be evaluated how the principle of the best interest of the child prevails over the principles of the mediatory nature, and it will be suggested how the criteria of age and maturity should be applied by the Technical Teams in mediation in custody cases, prioritizing the welfare of minors.