Since the beginning of the Cuban Revolution and as part of its policy, the State has been concerned with the comprehensive and multifaceted training of children, for this it has been working on the enactment of legal bodies and programs to implement the maximum guarantees to our childhood.
determination-guardian-children-minors-cubaIn Cuba, the Family Code promulgated on February 14, 1975, constitutes a very important normative body for the operators of the law who have the inescapable duty to impart justice, and to do it rationally where the best interests of the child prevail, which also contemplates the constitutional precepts on the equality of all children. But the existence of a Code containing norms of family substantive law where this principle prevails, together with that of equality and ownership and joint exercise of parental authority by both parents, is not enough; it requires adjective norms that serve as an adequate instrument for the performance or execution of said right, to carry out the purpose that the legal system proposes.
The Family is a basic institution in economic-social life. It is the historical form of organization of the common life of human beings of both sexes, it is a haven of peace where the most delicate joys of the spirit and ideas are established, where values are born and formed, where relationships are established paternal subsidiaries and where the care and care has a special connotation for being the most dynamic function of parental authority in charge of both parents, but which may well be assumed by the caretaker when there is no coexistence of these, who in turn has the obligation to collaborate so that the non-custodial parent communicates with their child; and it is precisely because it is a fundamental group of society and a natural environment for the growth and well-being of all its members, and in particular of children,that it must receive the protection and assistance necessary to fully assume its responsibilities within the community, both in the field of ideas and in that of its legal protection.
In Cuba, the Family Code promulgated on February 14, 1975, constitutes a very important normative body for the operators of the law who have the inescapable duty to impart justice, and to do it rationally where the best interests of the child prevail, which also contemplates the constitutional precepts on the equality of all children. But the existence of a Code containing norms of family substantive law where this principle prevails, together with that of equality and ownership and joint exercise of parental authority by both parents, is not enough; it requires adjective norms that serve as an adequate instrument for the performance or execution of said right, to carry out the purpose that the legal system proposes.
Therefore, in light of the consideration of the different perspectives that are appreciated in solving the issues where the custody and care of minor children is determined and the communication regime, it is necessary to have legal instrumentation that not only regulate it, but rather help to solve the contradictions that arise in this sense, in the most efficient, fair and rational way possible and that in the least measure harm the interests of infants.
Correspondingly, the conflicts that arise due to the exercise of parental authority when both parents exercise it, are resolved by the State bodies that have the corresponding function for it, in Cuba, the civil jurisdictional function, that is, by the Courts of civil jurisdiction, through the procedure legally established in Law 7, Law of Civil, Administrative, Labor and Economic Procedure, of August 19, 1977, and according to the legal norms that regulate the interests in question, either the summary process in general or the special divorce for just cause.
And although the summary process conceived in our procedural order as one of the knowledge processes by virtue of which doubtful or controversial rights are declared, which implies a knowledge of the Jurisdictional Body regarding the merits of the matter; characterized by its brevity, simplicity, procedural concentration and less solemnity that is due to the reason that in these processes minor claims are aired, or matters that due to their nature or characteristics require a quick solution, it is not sufficient for legal proceedings. family, in which the court must exercise an indisputable protective function, when dealing with juvenile matters, as a procedural subject watching over the good progress of family relations, in search of the only existing truth,using formulas that prevent the family process from becoming a duel between the parties, for the best interests of the child, the scope of which is difficult to interpret, since it requires not only the legal but also the psychological, affective and social perspective, which inexorably demonstrates the importance and usefulness of the selected topic.
That is why, despite the use of the summary process for the processing and solution of family conflicts of the nature studied, foreign procedural laws introduce procedural formulas or particularities that undoubtedly allow greater effectiveness of the procedure as an adequate instrument to guarantee the principle. in the best interests of the child.
Thus, this investigation concentrates on the personal aspects of parental authority closely related to the care and care of minor children and the communication between them with the non-custodial parent and fundamentally on the need to introduce novel aspects in the current procedural norm., in correspondence with international norms and taking as a reference the doctrine and the substantive norm for the analysis of the institution, as well as procedural laws of other countries, to solve the existing legal situation.
Based on these evaluations and especially on the ethical meaning and the protective function of parental authority that permeates the conception of care and care that is granted, in any case, in accordance with the principle of the interest of the minor, we carried out a study our civil procedural law, specifying in the procedure provided in Cuban legislation for the processes in which the custody and care of minor children and communication with them is determined, which in turn motivated us to carry out this investigation, defining as:
SCIENTIFIC PROBLEM of this research work the following:
Legislative insufficiencies in the procedural legal order regarding the regulation of litigation where the custody and care of minor children and the communication regime with them in Cuba are determined.
OVERALL OBJECTIVE:
Propose guidelines for the improvement of the procedural legal norm regulating the processes where the custody and care of minor children is determined and the communication regime with them to guarantee greater protection for the rights and interests of minors.
CHAPTER l: STORAGE AND CARE AND COMMUNICATION REGIME AS FUNCTIONS INHERENT TO THE POWERFUL HOMELAND.
1.1 The Patria Potestad. Basic notions
Parental authority is a natural institution that does not need positive law to act; even if there were no State, there would be parental authority, because the child comes into the world in need of protection and because, by undeniable natural impulses, the parents feel compelled and inclined to act, with that power, at the same time guardian and command; command to better act the protection of the child. For this reason, the State that finds itself with parental authority converts it into a legal power, regulating it in its precepts.
The current conception of parental authority has revolutionized its traditional conception and, consequently, its foundation; It stands out as a social function, with special public interest, even when it is justified in private order.
"Parental authority today is specifically conceived in the interest and benefit of the child." Thus, the foundation of parental authority, even if it has a natural substratum, today has a strong social and public inspiration, legally configured as a protective function for the care and protection of children .
This protective function of the exercise of the institution in the interest of the minor; it implies the adaptation of the paternal power to the specific circumstances and needs of the minor so that he can fulfill the full development of his personality, for which he requires, except in exceptional situations, both the figure of the father and Mother.
Concept
The legislative definitions of parental authority are not frequent, but in doctrine, there are several offered by different authors, always impregnated with the protective function that characterizes said institution.
PUIG PEÑA considers that parental authority "is that legal institution by virtue of which parents assume by right the direction and assistance of their minor children to the extent claimed for their needs." For his part, CASTÁN VÁZQUEZ considers that it is “the set of rights and duties that correspond to parents regarding the person and heritage of their non-emancipated children, as a means of carrying out the natural function that is incumbent on them to protect and educate their offspring. ”
I agree with VELAZCO MUGARRA when defining parental authority as: "the set of rights-duties exercised by the father and the mother based on the benefit of minor children, not emancipated, according to their personality".
Two essential aspects are considered in the content of parental authority: personal and patrimonial. The personal sphere includes the duties and powers of the parents in relation to the care and protection of the person of the child, while the assets include the administration and disposal of their property.
Some legal systems regulate the institution in accordance with the effects of parental authority over the person of the children (personal sphere) and the effects on property (patrimonial sphere). Our Code does not make that nominal distinction; The rights and duties of the parents are related as a unitary function of the exercise of parental authority, without separating the personal aspect from the patrimonial one.
1.2 The Guard and Care. General considerations.
During the normal coexistence of the spouses they jointly exercise the care and care of their minor children. "The guard integrates the paternal-filial relations of the parental authority and understands, with respect to father and mother, the obligation to protect their children, educate them, monitor their behavior and, where appropriate, correct and punish them appropriately, and with respect to children, the obligation to live at home with their parents or where they determine ".
Guarding and caring has a special connotation, it is the most dynamic function of parental authority, especially when parents do not live together. This function is closely related to other functions of the personal sphere of parental authority, such as education, comprehensive training, the right of correction and communication of minors with the non-custodial parent.
It is valid to insist that guarding and care requires daily coexistence with the child, essential for their direct care and due protection. These conditions are essential elements for the development of all parental filial functions, especially those related to the personal sphere.
The legal doctrine recognizes different names to refer to the direct care of children subject to parental authority, among which we can mention: "guard and care", "guard", "possession", "child care" and "guard and custody ”.
The term guardianship and custody is used, encompassing a personal measure regarding minor children due to their coexistence with both or one of the parents.
For its part, the term custody is an expression whose meaning is related to the patrimonial nature of the deposit, in order to guarantee the care of things, provided for contractual relationships. The care of the child subject to parental authority, is the purpose that is intended to be achieved when the term custody of minor children is used, it does not respond to the ethical, affective and human meaning that it entails, so it is derogatory to speak of custody of children in favor of one or the other parent.
The Cuban Family Code uses the expression guardianship and care as the first right-duty of parental authority. A detailed list of aspirations is established with respect to the direct care of minor children, so it follows that the legislator has tried to foresee all the duties required to fulfill this parental function.
The essential to perform the role of guarding and care includes a double consideration; on the one hand it is the right and on the other duty of the parents to have their minor child with them under the same roof (living together) to take care of them with due diligence (grooming, food, health, personal safety, recreation), and control their relationships in the surrounding environment, these are parental filial duties that in principle should be shared by both parents.
According to DÍEZ-PICAZO, care includes living with the son and feeding him in kind while the other parent limits himself to the financial benefit. But according to this author, the problem of the faculties of education, instruction, is more difficult to solve. and moderate correction, "as inseparable from parental authority as from having children in company"; believes that "the problem is arduous and there is no clear solution, other than considering parental authority as a preferential power and referring conflicts in any case to the judicial decision."
CASTÁN TOBEÑAS, raised the need to distinguish between "being cared for" and "being under the power and care", without clarifying the scope of this distinction.
GARCIA PASTOR tries to clarify the concept of guarding, considering that the cause of its origin is "the absence of coexistence of the parents and the consequent impossibility of both living with the child", from whose reflection he concludes that it is called "guarding the position held by the son who lives with him.
In accordance with the Cuban Family Code, the custody of the child subject to parental authority is also linked to the care, which is the responsibility of both parents, but when the separation of the couple occurs, one of the two will exclusively assume that responsibility, due to their lack of coexistence (articles 85.1 and 89 of the Family Code).
Guarding and care is one of the essential functions of parental authority, under the current Law; it means the direct care of the minor son and, in his case, for lack of coexistence of the parents, he is in charge of one of them.
When the guard and care is held by one of the parents, its content is expanded because the guardian also has the obligation to fulfill the function of collaborating with the communication regime established between the child and the other parent.
To develop the functions of guardianship and care, the constant contact of father and son is needed, which is not an obstacle for the father who does not live with him, to be able to partially carry out those functions that do not need the immediacy of the relationship with the son. Consequently, custody will include the functions that require such urgency, while the non-custodian will participate to the extent that it holds the exercise or ownership of parental authority.
Coexistence is not an exclusive attribute of the custodian, but is a right shared with the other parent, who, while not a custodian, materializes said coexistence through the communication regime that has been established when determining the attribution of custody and care of the common child.
1.3 The Right to Communication with the Non-Custodial Parent.
Conceptualization
The parent who does not have minor children with him shall enjoy the right to visit them, communicate with them and have them in his company; and it is precisely at that particular time that you will have the possibility of exercising the essential attributes that parental authority confers on you and that you cannot carry out on a daily basis.
VERDERA IZQUIERDO clarifies that: “the visitation right refers to the fact of having the minor in company for a few hours”.
In the opinion of RIVERO HERNÁNDEZ, the visitation right is based: “on the father's natural obligation and duty to maintain contact with his children and on their right to relate to their parents, thus ensuring the persistence of the affective bonds between them ”.
I share the opinion of GARCÍA PASTOR regarding that “the right to communication is a duty of higher rank, since between the obligations of parents and the rights of children that constitute the filial parental relationship, there are elements of an affective nature, and of a personal nature, such as the obligation to watch over the children and have them educate them in their company, which implies a personal and direct relationship between each other ”.
GARCIA CANTERO defines the right of visits as: “a purely affective content right that authorizes the owner to express or express his feelings towards another person, demanding the use of the necessary means to achieve this end.” Concept with which I fully agree.
CHAPTER II: PROCEDURAL LEGAL TREATMENT OF THE GUARDING AND CARE OF MINOR CHILDREN AND COMMUNICATION WITH THESE IN COMPARATIVE LAW.
To find out what the world trend is in the procedural treatment of disputes that arise around the custody, care and communication regime of minor children using the comparative legal method, I chose some laws from Latin American countries such as Venezuela, Peru, Chile, Bolivia, Colombia and Ecuador for their system of Romano-French law, and their advanced rules regarding the procedural regulation of family conflicts and especially those of the subject matter, whose proposals are the most adaptable to our country and Because with this area we have the highest aspirations for integration.
I also selected Spain based on the historical legislative and cultural ties that unite us, in addition to giving us the opportunity to learn about some trends in an area of such development in the legislative order, finding its family legislation tempered to new circumstances and responding in a way or another to the rest of the countries that make up the European Union.
I directed the study of these norms to know what is the procedure to resolve the issues of the nature studied in the chosen countries and if the revised Procedural Codes promote effective procedural support for the rights and interests of minors, given the complexity and special characteristics of family matters, verifying in each of them, the provision in their rules of procedural acts as expert evidence and hearing of the minor.
2.1 Of the Expert Evidence.
For the court to apply a legal norm, it is necessary that the facts that the law in the abstract has established in the norm as requirements for the production of its effects have been given in the specific case; Well, if the facts are not already fixed in the process as given, by virtue of the admission of the party to whom they harm, they must be proven, and the proof is nothing other than that activity of the subjects involved in the process civil, aimed at the objective verification of the facts that must serve as a basis for the court to resolve, in accordance with law, the matter submitted to its investigation and decision.
In order to reach an objective verification of the facts on which the dispute is based and of other circumstances that are important for the correct decision of the court, the subjects involved in the process use the means of evidence. Thus, when the practice of evidence consists of a sensory perception of the judges, the evidence is the one that enables or communicates such perception.
Among the means of evidence that can be used by the parties or the judge, we find the expert under which people with specialized knowledge (scientific, technical, artistic or practical) are called to the process to provide experiences that officials do not possess or cannot possessing or facilitating the knowledge or appreciation of influential facts in the process.
When the appreciation of a fact requires from the observer a special preparation obtained by the scientific study of the matter to which it refers or simply the personal experience provided by the exercise of a profession, the need for expertise arises in the process. And it is that the expert evidence is, of all that the Law allows, the most technical, and also the most professional because it represents the union of the legal form with other aspects of reality to which it applies.
In this sense, the Code of Civil Procedure of Colombia establishes in its article 439, that in the divorce processes, separation of bodies and those in which controversies arise between parents or spouses regarding the exercise of parental authority, in case of not conciliation is achieved the judge decrees and practices the tests requested by the parties that he considers necessary; he will hear the expert opinion of which he will immediately transfer the litigants so that they can request clarification and complementation at the same hearing, which will be practiced immediately afterwards. In the event that a judicial inspection or an exhibition outside the courtroom is necessary at the same evidence hearing, it will be indicated for the date and time for the following fifth day.
The procedural legislation of Chile empowers the judge to order ex officio the evidentiary means that it deems pertinent; Regarding the personal inspection of the Court, it will only be decreed when it deems it necessary, designating a day and time to practice it, with the due authorization so that the parties can attend their lawyers, and they can request that in the act of recognition, hear expert reports and the Court will decree if, in their opinion, this measure is necessary for the success of the inspection and has been interested with the appropriate anticipation, however, in cases of regulation of custody and communication of minors due to divorce and separation of bodies, the expert evidence is arranged ex officio in any case,provided that it is not interested in the parties (articles 266 and 403 of the Civil Procedure Code of Chile).
The aforementioned procedural rule in article 412 stipulates that the recognition of experts may be decreed ex officio at any stage of the trial, but the parties may only request it within the evidentiary period.
Peru, in this sense, establishes in article 194 of its Civil Procedure Code, that judges can order the action of the additional means of evidence that it deems appropriate when the evidence offered by the parties is insufficient. Precepting later that the eye inspection proceeds when the judge must personally appreciate the facts related to the controversial points; establishing the best to provide also in order to order the assistance of experts and witnesses.
Ecuador's procedural legislation empowers judges to order ex officio the evidence they deem necessary for the clarification of the truth, in any state of the case, prior to sentencing, except for the evidence of witnesses who were not available ex officio, but Yes, the judge may cross-examine or request explanations from witnesses who have already legally declared. This power will be exercised in all instances before issuing a final judgment or order (article 122 of the Ecuadorian Civil Procedure Code).
In matters of custody and communication of minors, it is determined that the judge ex officio orders the expert evidence if it is not in the interest of the parties, specifying in the order the date and time of the investigation, after appointing the experts, and may request clarification of the opinion or appoint other experts who fulfill these functions without being obliged to abide by their judgment against their conviction, as stated in article 266 of the aforementioned procedural text.
The Civil Procedure Code of Venezuela prescribes that in matters relating to family law and the civil status of individuals, the judge may request that the evidence on the points that are found to be deficient be expanded, or have ex officio those that he deems necessary.
In Bolivia, the current Civil Procedure Code determines in its article 378 that the judge within the evidentiary period or before passing sentence may order ex officio statements of witnesses, expert opinions, eye inspections and all kinds of evidence that he deems necessary and pertinent. In this case, the term to pass sentence will be suspended for the days required for the production of evidence.
On the other hand, Spain, in the civil procedural legislation of its country, attaches importance to the expert opinion to resolve disputes related to custody, custody and communication, so much so that if said evidence is not interested in the parties, the Court requests the diagnosis of the multidisciplinary family and child care team or simply a specialist with a view to ultimately adopt a ruling that is beneficial to the interests of minors.
2.2 Of the Hearing of the Minor.
To begin the analysis of this matter, it is worth first stopping at what the child's exploration means or entails. The grammatical concept to explore means to diligently recognize, inquire or find out a thing, to inquire is to inquire, to find out, or to examine carefully a thing, and to examine is to investigate, to inquire, to scrutinize; then there is no doubt that exploration must first seek to recognize the subject with whom it is intended to investigate something and then do it with the greatest diligence and care possible so that it leads to the truth asked.
When exploring a child, whatever his age, he must find a way to get to know what he wants without his sagacity allowing him to realize that this is the objective of the person who explores him, for this the subject should never be directly addressed, it should creating the necessary environment that inspires confidence and this requires patience, elemental knowledge of tastes, children's motivations, which will make the exchange enjoyable and little by little doubts, reluctance that block communication will be dispelled. He must be given opportunities to speak and maneuver to turn the conversation to where the explorer is interested, especially with general questions that allow him to make an exposition, listening carefully without interrupting his story, as this can lead to silence.
The hearing of the minor is a personal right of the child or adolescent that ensures their leading condition. Therefore, the child's word should be heard, whenever possible, in a personal way and it should be avoided that indirect hearing becomes the rule, since it is necessary to know from your own mouth the type of relationship that you have with each of your parents
The obligation to listen to the child and to take their opinion into account according to their age and degree of maturity, arises from the application of article 12 of the International Convention on the Rights of the Child and is thus, for example, that in Colombia, it is Provided that in cases of divorce, separation of bodies and controversies that arise between parents or spouses about the exercise of parental authority, the judge may hear minors if they consider it necessary to adopt not only the final sentence but also provisional measures., as stated in article 444 section two of the Colombian Civil Procedure Code.
In Peru, the current civil procedural legislation includes the power of the judge to order the appearance of the minor with discernment at the hearing of evidence or a special hearing, in the processes of conventional separation and divorce.
For its part, the Civil Procedure Code of Venezuela in its article 257 regulates the power of the judge to hear the minor if he deems it appropriate in matters related to family rights.
Spain, for its part, has regulated that judicial measures on the care, education and communication or visitation regime for minor children will be adopted for their benefit, after hearing them if they had sufficient judgment and always to those over twelve years of age. age.
CHAPTER III: THE DETERMINATION OF STORAGE AND CARE AND COMMUNICATION REGIME IN THE CUBAN PROCEDURAL ORDER. CRITICAL ASSESSMENT.
3.1 Exegetical analysis of the standard.
The determination of the guardianship and care of minor children and the communication regime with them, has its procedural legal protection in the Law of Civil, Administrative, Labor and Economic Procedure in force in Cuba, in the summary process of knowledge for cases of children. in the event of non-marital relations, of non-formal marital union, annulment of marriage, or of parents separated in fact from formalized marriage, by virtue of which the claims of the parties are satisfied, through the investigation and solution of civil and family matters, to through a method pre-established by law in order to protect the legal system; thus conceived at the time by the legislator given that the summary process dealt with by Title III of the Second Book, of the Law of Civil, Administrative Procedure,Labor and Economic, as we have already pointed out through our analysis, is a process of knowledge that is characterized by brevity, simplicity and procedural concentration, where less solemnity and greater speed prevail, which in our opinion is the ideal one to process the matters of a studied nature, although with the mandatory introduction of issues such as expert judgment during the testing and hearing of the minor by way of exploration.where a less solemnity and a greater speed prevail, which in our opinion is the ideal one to deal with matters of the studied nature, although with the mandatory introduction of issues such as the criteria of experts during the practice of evidence and the hearing of the minor via of exploration.where a less solemnity and a greater speed prevail, which in our opinion is the ideal one to deal with matters of the studied nature, although with the mandatory introduction of issues such as the criteria of experts during the practice of evidence and the hearing of the minor via of exploration.
3.2 Of the Expert Evidence.
In the processes where the care, care, communication and its contradictions are determined, the needs of affection, a stable environment, socialization, autonomy arise in children and all these needs are damaged by this conflict, which causes symptoms such as anxiety, depression, maladjustment, learning disorders, school rejection, among others; that one or several can occur at the same time and whose combination lead the child to a psychic illness, requiring intervention in these cases by specialists in psychology, since it would help parents in the first place to find the most appropriate solution to the conflict for in this way modify the causes that cause the symptoms and secondly,Because it performs a therapeutic treatment to the minor to attenuate the present symptoms and also prevents those that may appear. It may also be necessary to consult the opinion of specialists in psychiatry, pediatrics, pedagogy, social work or other specialties related to family care in order to listen to the opinion of people outside the process who can be very useful to the judge, since they illustrate it on issues of specialty, that those for being skilled in the matter can contribute.since they illustrate it on questions of specialty, which those who are skilled in the matter can provide.since they illustrate it on questions of specialty, which those who are skilled in the matter can provide.
In our Civil Procedure Law, there are several means of evidence that are within the reach of the parties and that the judges can use for a correct solution of the conflicts, being within it the expert evidence regulated in article 301 and following, proof that can be used when to know or appreciate any fact of influence in the process, it is necessary to hear the opinion of those who have specialized knowledge, scientific, technical, artistic or practical, whose correct interpretation of this article does not condition the practice of said medium of proof to your request at the request of a party, with which the legislator does not forget the possibility that it is the judge himself, who can have it ex officio in the evidentiary period. Of course, it is up to the judge to assess this evidence,without having to submit to the opinion issued, as regulated by article 315 of the Law on Civil, Administrative, Labor and Economic Procedure, the decision that is ultimately adopted.
By virtue of the aforementioned, it is the opinion of this author that it would be advisable to include expert evidence in the procedural norm given the complexity of the litigation that is resolved and the consequences that may occur in the psychological order for the minor whose Guard and care and communication regime is determined.
3.3 Juvenile Hearing.
In our substantive law, it is only foreseen to explore the will of the minor in adoption cases when the minor is seven or more years old (article 107 of the Family Code).
The Civil Procedural Law by which family processes are processed, does not regulate the hearing of the minor in matters in which decisions are made that could affect the minor child due to the conflict of their parents in the exercise of parental authority, contrary to what we observe in the procedural systems of the countries studied.
In litigation where the custody and care of the minor child and the communication regime with the non-custodial parent must be attributed, it is the interest of the child in the specific case, the guiding principle to determine its allocation and therefore the opinion of the child or adolescent constitutes an essential contribution to the Court that must resolve the conflict, since it allows him to know his personality, inclinations, difficulties, the type of relationship he maintains with each parent, the feelings he experiences and his preferences, hence it is criteria of this author, that in the processes of the nature studied, the Court should, on a mandatory basis, hear the minor involved who is seven years of age or older, by way of exploration, in an environment that inspires confidence and with absolute privacy,away from the headquarters of the judicial body, in a place with the appropriate conditions for it, stripped of their robes and solemnities, using, if necessary, specialists with knowledge in family care, directing questions that in no way put them in a position to offer response that implies the rejection of one of the parents, which requires patience and elemental knowledge of the tastes and motivations of children; everything that will allow a pleasant exchange and that will gradually create a climate of trust that allows the doubts and reluctance that block communication to be dispelleddirecting questions to him that in no way put him in a position to offer an answer that implies the rejection of one of the parents, which requires patience and elementary knowledge of the tastes and motivations of children; everything that will allow a pleasant exchange and that will gradually create a climate of trust that allows the doubts and reluctance that block communication to be dispelleddirecting questions to him that in no way put him in a position to offer an answer that implies the rejection of one of the parents, which requires patience and elementary knowledge of the tastes and motivations of children; everything that will allow a pleasant exchange and that will gradually create a climate of trust that allows the doubts and reluctance that block communication to be dispelled
The hearing of the minor is of such importance that the highest judicial authority in our country, the Supreme People's Court, when implementing Instruction 187 of December 20, 2007, provides, among other things, the indication of hearing the minor involved through exploration that is seven years old, seeking the cooperation of a multidisciplinary technical advisory team, with the purpose of equipping judges with certain procedural tools for uniform judicial practice in family processes and tempered to current conditions, which fosters a greater rationality of judicial decisions, with which it is possible to assert and validate in advance that it could be incorporated into the procedural order as a novel aspect.
CONCLUSIONS
1-Guarding and care has a special connotation, it is one of the essential functions of parental authority that means direct care of the minor child, and in his case, due to lack of coexistence of the parents, he is in charge of one of them; It is closely related to other functions of the personal sphere of parental authority such as education, comprehensive training, correction and communication of minors with the non-custodial parent.
2- The parent who does not have minor children with him shall enjoy the right to visit them, communicate with them and have them in his company; thus, having the possibility of exercising the essential attributes that parental authority confers on it and that it cannot carry out on a daily basis.
3- The figures of care, care and communication in the positive law of each country have been received in different ways, reflected in the substantive laws according to the prevailing social system, although there are common aspects in their procedural treatment such as participation of experts in family matters with practical and specialized knowledge of what is the subject of the dispute, with the presence of the parties, which have all the guarantees required by being able to use the different means of evidence available to them as well as the infant's audience whenever deemed necessary.
4- The summary process of Title III of the Second Book, of the Law of Civil, Administrative, Labor and Economic Procedure in force in Cuba, although it is the ideal one to process matters of the nature studied for its brevity, simplicity and procedural concentration, where less solemnity and greater speed prevail, unlike procedural laws of other countries, it lacks procedural features that could contribute to greater protection of the rights and interests of minors.
5- That it is wise to regulate in the summary procedure for the solution of the processes where the custody and care and communication regime are determined in a mandatory manner, procedural peculiarities such as the criteria of experts in family care during the practice of tests that can be very useful to the judge to illustrate it on matters of specialty, which those who are skilled in the matter can provide and the hearing of the minor by means of exploration whenever he is seven or more years old, to hear him in correspondence with the regulations of the International Convention of the Rights of the Child.
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