Among the most relevant aspects found in the Organic Law for the Protection of Boys, Girls and Adolescents (LOPNNA), is the so-called Comprehensive Protection System for the Comprehensive Protection of Boys, Girls and Adolescents, which aims to protection of human rights and the best interest of the legal subjects of the aforementioned regulatory structure.
In that sense, in our country as a consequence of the migratory flow experienced in recent years, among other social realities that have been suffered, is the hyposufficiency of many children and adolescents in relation to whom their situation as a sector of The population at risk has been magnified by violations or threats of grievances or impairment of their human rights and best interests.
Due to the above, currently the relevance of the family institutions provided for in the Organic Law for the Protection of Children and Adolescents has increased, among which parental authority and parenting responsibility stand out, since the cases of many parents who have migrated to other countries seeking better living conditions and in search of support for those who remain, and who have found themselves in the need to leave their children in the care of only one of the parents, their grandparents, relatives and even people with whom there is no relationship, which it is insisted, has led to an exacerbation of the situation of vulnerability of children and adolescents, and the risks of harm to their human rights and best interests.
Due to the aforementioned, it has been considered of significant interest to make, in the form of comments, a contribution on two jurisdictional protections that are currently part of daily forensic activity in the jurisdictional protection bodies, such as requests for unilateral exercise of parental authority. and family placement, the latter as an institution that guarantees the responsibility for the upbringing and representation of children and adolescents by people other than their parents.
- Parental authority.
The definition of parental authority is specified by the legislator in article 347 of the LOPNNA, which provides. “Paternal authority is understood to be the set of duties and rights of the father and mother in relation to sons and daughters who have not reached majority, which has as its objective the care, development and comprehensive education of the sons and daughters.”
According to the aforementioned regulatory element, it should be noted that parental authority includes a set of duties and rights of the father and mother, that is, it is a right-duty as this type of regulatory structures are defined, which encompasses the duties of “…care, development and comprehensive education…” in the field of essential content or protected legal assets that are related to human and fundamental rights, the safeguarding of subjective patrimonial rights, and the attributes of the best interest, of the sons and daughters who have not reached majority, which in the Venezuelan case, in accordance with article 18 of the Civil Code, is reached at 18 years of age. Likewise, said family institution entails a right for each parent to make these duties effective towards their minor sons and daughters, without more restrictions than those established by the law itself.
As regards the principle of best interest recognized in article 8 of the LOPNNA, first of all, it is an interpretative principle of the application of the regulatory structures of said law, both at the administrative and jurisdictional level, which must serve as a paradigm or hermeneutical episteme for the administrative bodies to which the regulatory text refers, such as for judges. Furthermore, the in examine principle operates as a guarantee for the effectiveness of the human rights recognized in the Constitution and in the law in favor of children and adolescents.
Continuing in the order of ideas referring to parental authority, article 348 eiusdem addresses its content, which “…includes the responsibility of parenting, representation and administration of the assets of the sons and daughters subject to it.”; As stated, it has a broad scope that covers both fundamental human rights and those subjective rights of a strictly patrimonial nature that concern children and adolescents.
In relation to the ownership and exercise of parental authority, article 349 eiusdem provides the following. “Paternal power over common sons and daughters born during marriage and stable de facto unions established by law corresponds to the father and mother, and it is exercised jointly, fundamentally in the interest and benefits of the sons and daughters.”.
It is important to pause briefly in the analysis of the aforementioned norm, since it would better illustrate the topic addressed. In principle, the exercise of this structure of duties and rights that comprise parental authority is exercised jointly when it comes to sons and daughters born within marriage or stable de facto unions, here the contingent structure of the legal rule is constituted by circumstance that the sons and daughters were born within marriage or in de facto unions that respond to an idea of stability; Therefore, given this factual assumption, said institution must be exercised jointly by the parents, unless there is a restriction or deprivation of the aforementioned right-duty for the reasons prescribed in article 352 of the Organic Law for the Protection of Children. , Girls and Adolescents, namely:
“The father or mother or both may be deprived of parental authority over their children when:
- They mistreat them physically, mentally or morally;
- They expose them to any situation of risk or threat to the fundamental rights of the child;
- They fail to comply with the duties inherent to parental authority;
- They try to corrupt or prostitute them or collude in their corruption or prostitution;
- Sexually abuse them or expose them to sexual exploitation;
- Are dependent on alcoholic, narcotic or psychotropic substances or other serious forms of drug dependence that could compromise the health, safety or morality of their children, even when these acts do not entail criminal sanctions for the perpetrator.
- Are convicted of punishable acts committed against the child;
- Be declared interdicted,
- They refuse to lend them food;
- Incite, facilitate or allow the child to carry out acts that threaten her physical, mental or moral integrity.
The judge will consider the seriousness, repetition, arbitrariness and habitual nature of the facts.”
In turn, article 353 eiusdem states.
“The deprivation of parental authority must be declared by the judge at the request of the interested party. The interested party to file the corresponding action is considered to be: the other parent with respect to whom the filiation is legally established, even when he or she does not exercise parental authority and the Public Ministry, acting ex officio or at the request of the child from the age of twelve, of the ascendants and other relatives of the child within the fourth degree in any line, of the person who exercises guardianship, and the Protection Council. In all cases, the judicial decision must be based on proof of one or more of the causes provided for in the previous article.
As can be deduced, the assumptions contained in the previous article are related to the protection of human rights and the best interests of the child, either because they are unknown, threatened, or the parents are prevented from guaranteeing the effectiveness of those rights. basic or essential and the attributes intrinsic to that higher interest to which the standard refers (Art. 8° LOPNNA).
However, this norm contains what Cossio calls an “unmentioned circumstance”, and I am referring to those cases of sons and daughters born in non-marital or non-stable de facto unions, which is still part of a reality in our society. society, the procreation of sons and daughters in extramarital unions that cannot qualify as stable de facto unions in accordance with the jurisprudential doctrine of the Constitutional Chamber of the Supreme Court of Justice. (See ruling of July 15, No. 1,682/2005).
Without a doubt, in this case, without prejudice to the duties and rights inherent to parental authority that corresponds to every father or mother, the exercise of parental authority can be carried out not jointly but individually in favor of one of the parents.
Now, after the brief analysis of the regulatory elements brought up, which are unavoidable to approach the knowledge of parental authority as an institution that protects the rights and guarantees of children and adolescents, also, as a right of the parents; It is important to return to what was previously expressed regarding its deprivation in the terms of article 352 ibidem, specifically, regarding its adjective or procedural aspect. In this sense, the deprivation of parental authority is only possible through a judicial resolution issued by the judicial body for the Protection of Children and Adolescents that is competent, that is, the one corresponding to the domicile of the minor, through a procedural legal relationship in which all rights and guarantees have been respected (Art. 26 and 49 of the C.R.B.V.), and following the procedure provided in article 456 et seq. of the LOPNNA.
On the other hand, and here we enter one of the core issues of this article, that is, the one corresponding to the request for the unilateral exercise of parental authority, which is a requirement or jurisdictional protection that has become very frequent before the bodies for the protection of children and adolescents, as stated in the introduction, as a result of the migratory flow experienced in the country in recent years.
In this order of ideas, the Civil Code in its articles 262 and 420 provide:
“Article 262.- In the event of the death of the father or mother who exercises parental authority, if any of them is subject to interdict guardianship, if they have been declared absent, if they are not present or when for any reason they are found prevented from complying with it, the other parent will assume or continue to exercise parental authority alone; but if he had been deprived of it by sentence or judicial decision, he will not be able to do so until after he has been authorized or rehabilitated by the same court.”
“Article 420.- Since the presumption of absence of one of the parents occurs, the other will exercise parental authority, and if the latter has died, or is unable to exercise it, guardianship will be opened.”
As can be seen, the contingent structure of the unilateral exercise of parental authority is limited to the following assumptions:
- When, by virtue of the separation of the parents due to one of them having migrated, by mutual agreement, including through a power of attorney granted abroad duly apostilled and translated into the Spanish language, they request the Court for the protection of Children and Adolescents that parental authority is exercised, temporarily or provisionally, not jointly as established by law, but by only one of the parents who is in charge of parenting responsibility, in order to more effectively promote fundamental rights. of sons and daughters, and their best interests. In this case, approval is requested from the court of the aforementioned approach, and the judicial body is empowered to ratify said request by the parent who is abroad through the use of telematics, within the framework of a hearing. or who for any other reason is in some way limited from fully complying with the protection of human rights and that higher interest, without prejudice to the fulfillment of his responsibilities as a father, v. gr, related to maintenance, among others, which in no case is reiterated, given the best interest of children and adolescents, they do not have to be affected by the approval or declaration of the aforementioned unilateral exercise.
- When the absence of one of the parents is of an indefinite nature in time or the whereabouts of the parent are unknown. In this case, the requesting father or mother submits the respective document to the protection court where the child or adolescent is domiciled, and following the procedure established in articles 511 and following of the LOPNNA, of the gracious or voluntary jurisdiction, a judicial resolution arises that declares the unilateral exercise in favor of the applicant.
Finally, and for greater completeness, the reader interested in this topic is recommended to review two relevant rulings of the Supreme Court of Justice (T.S.J.), which are considered part of the jurisprudential doctrine that has come to clarify in a more adequate way the institution until now commented.
CONSTITUTIONAL CHAMBER (TSJ), APRIL 30, 2014, SENT. No. 284/2014:
http://historico.tsj.gob.ve/decisiones/scon/abril/163496-284-30414-2014-13-0332.HTML
SOCIAL APPEAL CHAMBER (TSJ), MAY 17, 2014, SENT. No. 410/2018:
http://historico.tsj.gob.ve/decisiones/scs/mayo/211407-0410-17518-2018-17-309.HTML
