¿Tenencia monoparental o tenencia compartida? una visión jurídica enfocada en el interés superior del niño.

Abstract

The best interest of the child (ISP) is a principle that involves the entire society in protecting the rights of children and adolescents. All of this is correctly stipulated in the Constitution of the Republic of Ecuador (CRE 2008) and in the Code of Children and Adolescents (CONA 2013). For this principle to become an effective instrument of public and private institutions, and especially of the justice system, the nature of human rights and the way in which these rights are made effective must be understood. Thus, given the existence of the right of survival, children and adolescents have the right to coexistence with their parents (father and mother), equitable and harmonious coexistence with their family, to affection, to the constancy of their parental relationships, even more so when the couple or marital relationship has been dissolved, directing the family to the concept of custody. Recognizing that the legal concept of shared custody is the only way to make effective the right of children and adolescents to relate and live equally with their parents, in practice, factors such as the lack of explicit regulations, legal unawareness, and idiosyncrasies regarding gender roles for care, have made the protection of this right almost impossible to protect. In this research work, the needs of children and adolescents will be prioritized. During our exploration, we will expose the legal reasons that do not allow shared custody in the event of separation or divorce to be exercised harmoniously, leading minors to the figure of single parenthood, falling on the mother, this being a normalized condition that contradicts the principle of the best interests of the child.