In 2014 in our country, the amount of child population from 0 to 17 years old, amounted to 40.2 million people, that is, 19.7 million girls and 20.5 million boys, which indicates that 33.3% of the total population of the country are children and adolescents, which will result in the country having to invest in this sector over the years to guarantee their needs. (INEGI, 2015).
The Convention on the Rights of the Child is the most important human rights treaty at the international level and to which Mexico is a party and since in it, girls, boys and adolescents are recognized as subjects of rights, and not only as objects protection, in the country not all the appropriate legislative and administrative measures had been taken for the protection and support of minors at all times, violating the principle of the best interests of the child. There is a lag on the part of our judicial authorities when issuing decisions in custody cases, since most of the time separating the minor from one of her parents is more harmful than beneficial.
Keywords: Best interests of the child, rights, legislative measures, joint custody.
The evolution of legal thought makes it possible to affirm that, behind the notion of human rights, lies the idea that all people, including children, enjoy the rights enshrined for human beings and that it is the duty of states to promote and guarantee their effective equal protection; But despite this, in Mexican society there are difficulties and obstacles in this matter, since historically minors are a vulnerable sector, a few years ago they were invisible to Mexican law, since not all the legislative measures had been taken in the country and adequate administrative procedures.
It is not possible to remain indifferent to interpretations of the best interests of the child that tend to legitimize decisions that violate the rights recognized by the Convention itself. The main objective of our authorities must be to promote the union between the best interests of the child and the effective protection of their rights. One of the rights that undoubtedly helps to define this principle is that the minor is heard in those processes where she has an interest, provided that the decisions that may be made affect her directly or indirectly.
El punto central de este derecho es la individualización que debe hacerse en cada proceso en el que se encuentra implicado el menor a efectos de tomar una decisión que le beneficie. Estoy convencida de que cada caso no puede ser juzgado como se hace con las demás controversias en materia familiar porque los casos de custodia en automático se convierten en un niño y como todo niño con su modo de ser individual, único, irrepetible.
The Supreme Court has ruled on this issue, concluding that current civil norms should have as a guiding principle the best interests of minors to harmonize the legitimate rights of the father and mother, in addition to subjecting custody to none of the two parents exercise conducts tending to parental alienation, that is, it consists of the conducts carried out by the father or mother who has custody of a son or daughter, preventing visits and coexistence with the other parent, causing the child or girl a process of transformation of consciousness, which can go from fear and rejection, to hatred.
It also determined that the norms applicable to minors shall be understood to be aimed at providing them, primarily, the care and assistance they require to achieve growth and full development, within an environment of family and social well-being, and that to attend to This principle, the exercise of the rights of adults may not, at any time, or under any circumstances, condition the exercise of the rights of children and adolescents, and it was established as an obligation for all the authorities involved, in the field of its powers, that of ensuring minors the protection and exercise of their rights and taking the necessary measures for their well-being. Since minors are holders of rights with progressive and gradual acquisition.
One of the isolated theses referring to the subject in question is the following:
Epoch: Tenth Epoch
Registration: 2007477
Instance: Collegiate Circuit Courts
Type of Thesis: Isolated
Source: Federal Judicial Weekly Gazette
Book 10, September 2014, Volume III
Subject (s): Constitutional, Civil
Thesis: II.1o.13 C (10a.)
Page: 2425
KEEPING AND SHARED CUSTODY. WIDER PROTECTION OF THE BEST INTEREST OF MINORS.
If it is taken into account that the sole custody and custody is one in which the care of the children and the duty to watch over them is attributed only to one of the parents, and the other is established a regime of visits and food, which means that the parent who has legal custody will be the one who has the full authority to decide on matters concerning the minor that arise in daily life; However, the best interests of minors are more protected when custody and custody are shared, as it preserves a more adequate and complete sphere of rights for the minor, because it harmonizes the legitimate rights of the father and mother,without prejudice to the well-being of minors and ensuring compliance with their school duties and their rights regulated in article 9 of the Law for the Protection of the Rights of Girls, Boys and Adolescents of the State of Mexico;
In addition, on the one hand, it provides minors with a better quality of life, since there are always two to respond and satisfy their needs, and, on the other, minors establish a strong emotional bond with both parents and reduce the feeling of loss that occurs in divorce cases and when sole custody is decreed; Likewise, it gives independence to each of the parents to be able to take actions and decisions regarding academic and school issues, medical care, travel, etc., all related to the development and daily living of the minor, with the same authority and equal rights. conditions and circumstances. For this reason, it should be privileged, as far as possible, taking into account the evidentiary material provided, the origin of joint custody,since it is considered as having the best status for the development of minors.
FIRST COLLEGE COURT OF THE SECOND CIRCUIT WITH RESIDENCE IN CIUDAD NEZAHUALCOYOTL, STATE OF MEXICO.
Direct protection 20/2014. April 3, 2014. Unanimity of votes. Speaker: Miguel Enrique Sánchez Frías. Secretary: David Fernández Pérez.
This thesis was published on Friday, September 19, 2014 at 9:30 am in the Federal Judicial Weekly.
Therefore, custody, the exercise of which is decreed in a shared manner, leads precisely to the estimation that both parents retain the right to fully care and assist the infant, in the proportion that corresponds to them.
The Committee on the Rights of the Child in 2013 made a transcendental observation to the Convention on the Rights of the Child:
What in the opinion of an adult is the best interests of the child cannot take precedence over the obligation to respect all the rights of the child set forth in the Convention. Emphasizing that in the Convention there is no hierarchy of rights; All the rights provided are in the best interests of the child and no rights should be prejudiced by a negative interpretation of the best interests of the child. (UN, 1989)
The Judge must guarantee at all times the rights of the minor, to restore the filial relationship, that is, their right to live with their parents, which is of high interest, since to achieve a healthy development and formation of their personality it is necessary that minors have a relationship with them, in accordance with article 9 of the Convention on the Rights of the Child, which establishes the right of children to live with their parents, which must be protected and sought, unless there is evidence that your safety is put at risk. Said issue requires the application of existing Mexican legal norms, as well as the laws that apply analogously to custody cases, therefore it is well known that modern families,Regarding the distribution of roles between the father and the mother, they have achieved gender equality between the responsibilities they exercise with their children, this evolution has not been generalized in all the families of the country, but it can manifest itself in many of them and said This dynamic must be reflected in the judicial measure adopted on the custody and custody of minor children, so that our authorities cannot ignore an issue of national and international importance.so our authorities cannot ignore an issue of national and international significance.so our authorities cannot ignore an issue of national and international significance.
1. BACKGROUND OF THE BEST INTERESTS OF THE CHILD AND CUSTODY
The issue of the best interests of the child until a few years ago, was an issue that had not been highlighted in our country, so it is considered a recently created issue in Mexican legislation but that has historically been studied in other countries through law juvenile. So to know a little more about the subject it is necessary to inquire into its background.
1.1 Background of the best interests of the child
In 1924, the League of Nations approved the Declaration of Geneva or declaration of the rights of the child, a document that became historical, since for the first time it recognized and affirmed the existence of specific rights of children, as well as the Responsibility of adults towards them, it was then that it was decided to elaborate a second Declaration of the Rights of the Child, considering again the notion that humanity owes the child the best it can offer.
On November 20, 1959, the Declaration of the Rights of the Child was approved unanimously by all 78 member states of the UN, of which Mexico is a part.
In 1990 the World Summit for Children was held in order to commit to improving the living conditions of children and as a result of this meeting, a document called the World Declaration on Survival, Protection and Children's development.
In 2001, various observations were made by the Committee on the Rights of the Child. Until 2014 and after an arduous social work in 2011, two transcendent constitutional reforms were published for the rights of minors, the first to the fourth article that added the principle of the best interests of children, and the second to article 73. which empowered the Congress of the Union to pass laws on the rights of girls, boys and adolescents.
These reforms constituted an important advance in the treatment of childhood and adolescence issues, and allowed the publication of two of the most transcendent general laws on the matter: on October 24 of that year, the General Law of Provision of Services for the Attention, Care and Comprehensive Child Development, and more recently, on December 4, 2014, the General Law on the Rights of Girls, Boys and Adolescents, for which in our country the corresponding laws have been drawn up to comply with international agreements of which Mexico is part.
1.2 Custody history
Reviewing the historical background of family law we find that what is currently called custody has its origins in parental authority, which in turn has its beginnings in ancient Rome, where the effects of it were excessive, for a long time the paterfamilias was able to kill, maim, throw the alieni iuris out of their home without anyone questioning him about it for his actions, until Augustus, the son could be the object of theft, the domination that the paterfamilias exercised over all the people in his charge did not They were extinguished more than by the death of that one, with the passage of the years the behavior of the paterfamilias was subjected to the appreciation of the census and more and more important restrictions were imposed on the authority of that one.
In America, parental authority was imposed by the Spanish Empire in its colonies, as it must be remembered that at that time the Church was the main precursor of all issues related to colonial organization, and it was who established the first notions of family. The French Revolution abolished parental authority by law of August 28, 1792, establishing the equal authority of the father and mother over the children. Napoleon's Civil Code of 1804 would reestablish parental authority in France, where it would only be eliminated in 1970. In the 19th century, the feminist movement began to demand equality between men and women, with relationships with children being one of the main fields of the claim of equality.
2. ANALYSIS OF THE GENERAL LAW OF THE RIGHTS OF GIRLS, BOYS AND ADOLESCENTS.
The law in question is published in the Official Gazette of the Federation on December 14, 2014 which is of public order, social interest and general observance in the national territory, of which it is highlighted that girls, boys and adolescents are right holders, in accordance with the principles of universality, interdependence, indivisibility and progressivity; in the terms established in article 1. of the Political Constitution of the United Mexican States. Within its content, in the second article we find that it mentions the best interests of the child, which in the letter says:
The best interests of children should be considered as a primary consideration when making decisions about a debated issue that involves girls, boys and adolescents. When different interpretations are presented, the one that most effectively satisfies this guiding principle will be chosen.
The aforementioned article emphasizes the importance of the best interests of the child at the time of issuing a resolution involving a minor, since it is he who is directly impacted by said decision.
In the Fourth Chapter entitled "On the Right to Live with the Family", it refers to the fact that children and adolescents may not be separated from persons exercising parental authority or from their guardians and from custody, unless there is an order of competent authority, in which the origin of the separation is determined, because a misinterpretation of said interest can produce negative consequences on the minor and create evolutionary, cognitive and maturity problems.
In the seventh chapter entitled "From the Right to Live in Welfare Conditions and to a Healthy Integral Development" we find that the responsibility for the healthy development of minors corresponds to those who exercise parental authority, guardianship or guardianship and custody of girls, boys and adolescents, and together with them, the federal, municipal and territorial authorities of the area are responsible for the healthy recreation of the minor within the scope of their respective competences.
Subsequently, in the Fifteenth Chapter named "From the Right to Participation" in Article 73, it prioritizes at all times that the minor must participate and be heard in all judicial and law enforcement processes where disputes that affect them are settled.
The law, in addition in its Third Title, contemplates the obligations of those who exercise parental authority, guardianship or custody of girls, boys and adolescents, from the most basic needs such as the right to live in an affective environment to the most complex ones such as abstaining of any attack against their physical or psychological integrity or acts that undermine their integral development.
Within the fifth title, “On the protection and comprehensive restitution of the rights of girls, boys and adolescents”, First Chapter of the authorities, we find that said authority has the obligation to guarantee the exercise of the rights of girls, boys and adolescents, for which they must observe the best interests of children at all times and ensure their priority assignment.
Due to the aforementioned, it is concluded that the General Law on the Rights of Girls, Boys and Adolescents is a very complete law in matters of procurement and protection of the rights of minors, unfortunately, said law in practice does not have the effects laws for which it was prepared, it is evident the lag in its application, the federal government presented the strategy "25 to 25: National Objectives for the Rights of Girls, Boys and Adolescents." The strategy consists of achieving in the next nine years the fulfillment of 25 proposals, which have to do with combating poverty, marginalization and defense of their human rights, among others, which shows the lack of administrative structure to achieve the correct application and continuity of the laws promulgated, and it is that in the matter of Girls,Children and Adolescents cannot be lagging since this is a matter of public order.
3. OF CUSTODY AND ITS TYPES
Custody and care is the first duty of parents in relation to non-emancipated minor children (Article 259, 282 section VI, 283, 421 CCF). It means having them in your company for your vigilance and care. The courts speak of custody as an obligation, since parental authority includes a series of rights and correlative obligations for those who exercise it, such as the custody of minors, the power to correct them, to represent them in legal acts that the law indicates, to administer their assets, to provide food, etc.
It should be noted that our legislation uses the terms care and custody, that is, custody must be exercised with due care, since at all times it must provide the minor with the basic needs that are necessary for their comprehensive training, such as the love, attention, respect, etc.
However, in Mexican legislation there is still no correct definition of the term custody, and therefore in legal practice the appearance of joint custody is not common, since if there is still no definition of custody, it is logical that there is no there is a definition and limitation of joint custody, since this would be a derivation of the first. One of the rights that undoubtedly helps to delimit the principle of the best interests of the minor and consequently his greater protection, is to be heard in those processes where he has an interest, provided that the decisions that may be made affect him directly or indirectly, since the child has the right at all times to live with his parents and not be separated from his parents against their will,since the integrity of the minor must be safeguarded at all times.
On the other hand, divorce commonly generates the loss of said custody by one of the spouses, since it is the Family Judge who in terms of Article 283: "Must resolve everything related to the rights and obligations inherent to parental authority, its loss, suspension or limitation, as the case may be and especially to the custody and care of the children… "
It is clear that the law has a very high goal in terms of the broader protection of the minor, and at all times you must make a detailed evaluation of all the elements of judgment available to you and duly reason your decision, because with it they can generate a wide range of situations.
Articles 416,417 and 418 of the Civil Code for the Federal District not only establish the rules for the exercise of parental authority when the parents are separated, but also determine that its exercise must be adjusted to what the parents agree, in particular to the guard and custody, which they can share.
In the absence of this agreement, they will be subject to what is ordered by the corresponding judicial resolution, in which the opinion of the minor must be taken into account and the joint custody regime will be sought as much as possible, except in serious danger, the child of full and unlimited way with both parents.
Within the custody we find the sole custody that is in which the minor will remain in maternal or paternal custody until the age of seven if there is no risk to his physical and mental integrity, and after that age, the father who does not exercise it may sue her if possible. In case of suspension of the exercise of custody due to non-compliance with the established coexistence regime, it may be recovered when it is proven that the form indicated by the sentence has been fulfilled again, noting that the separation between the parents does not extinguish them of their obligations in food.
On the other hand, joint custody is that which is exercised simultaneously and jointly by the parents, that is, they retain the right to fully care and assist the infant, in the proportion that corresponds to them, as established by the courts.
Conclusions
Shared custody means a transcendental change in Mexican legal life, since it is only applied only in civil cases in which it arises, so it should be given the character of general and not of particular so that the Judge has a broader catalog from which to choose the custody that favors the minor.
Shared custody means greater coverage of the best interests of the child, since the parents continue to assume the responsibilities that the minor requires despite the separation that arises between them, because one thing is for the parents to divorce and quite another. that they do it of their children, because all the time they will be united by ties of consanguinity or filiation.
Until now, the usual thing in marital breakdowns is that the Judge grants custody to one of the parents, which at this time lacks legal relevance since there is no opening to international law of which Mexico is a part, since It is useless for the country to be part of them if in national practice it is not very common to see it.
I believe that governmental and non-governmental organizations should work together to create a single force in order to protect minors, without forgetting that the most important role is played by our authorities, so that the Judge to dictate his sentence must assess the opinion of the minor and the agreement of wills of the spouses, since if they agree to share custody of the minor it is necessary that in the sentence that is pronounced the terms proposed by the parties to dissolve their marital bond are valued, since It is the parents who wish to terminate the union for emotional reasons, this without harming the minors who exist as a result of that relationship, since they cannot divorce them.
Reiterating that the best interest of the child in joint custody is the one that provides the broadest protection at all times, coupled with the fact that it is the best possible solution for the minor to continue to preserve the figure of the family, since currently as a society we face problems with young people, those who commit crimes, do not study, do not work, do not have values, among other things, which is a reflection that in their family nucleus they are not having the adequate attention and guidance to be better citizens, so the family must continue being preserved at all times, as we remember that this is the basis of all modern society, in addition to the fact that in childhood it is where the first bases of any human being are formed and if these are solid and adequate, many problems can be avoided in the future,which psychologically are reflections of the deficiencies that we have in childhood, so that joint custody is the most appropriate way for the minor to reduce the feeling of loss that it produces during divorce, because when they see that their parents have a good relationship, assimilates divorce faster and avoids creating emotional voids that are difficult to fill later.
References
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Legisgraphy
- Federal Civil Code Political Constitution of the United Mexican States Convention on the Rights of the Child General law on the rights of girls, boys and adolescents.
