1. The responsibility of parenting.
After having discussed on a previous occasion the family institution of parental authority and its unilateral exercise, it is appropriate to address another very recurrent jurisdictional protection in the judicial bodies for the protection of children and adolescents, such as family placement, which is intimately linked to the family institution of parenting responsibility. In that sense, article 538 of the LOPNNA provides:
“The Responsibility of Parenting includes the shared, equal and inalienable duty and right of the father and mother to love, raise, train, educate, guard, monitor, maintain and assist materially, morally and emotionally their sons and daughters, as well as the power to apply appropriate corrective measures that do not violate their dignity, rights, guarantees or integral development. Consequently, any type of physical corrective measures, psychological violence or humiliating treatment to the detriment of children and adolescents is prohibited.”
The aforementioned regulatory element defines what the responsibility of parenting consists of and what it includes, which can be summarized in everything related to the protection of the value of human dignity and the rights that emanate from it in favor of boys, girls and adolescents, as well as the substantial and adjective public guarantees aimed at making these rights effective; Furthermore, the responsibility of parenting includes those contents or attributes intrinsic to the best interest provided for in article 8 of the LOPNNA.
2. Characteristics of Parenting Responsibility
In turn, article 359 eiusdem refers to the characteristics of parenting responsibility, namely:
- It is an attribute of parental authority;
- This is a duty, in principle, shared between the father and the mother, regardless of divorce, separation of bodies; Marriage annulment and de facto separated relationships:
- It carries civil and criminal liability on the part of those who exercise it;
- In principle, there must be a coexistence regime for the exercise of parenting responsibility, without prejudice to what is stated in literal b);
- The place of residence of the child and adolescent is decided by common agreement by the father and mother; and
- When there are separate residences, the content or attributes other than cohabitation will be exercised by the father and mother; however, as an exception, shared custody may be agreed upon if it is favorable for the best interests of the child and adolescent.
3. Resolution of disagreements and legal aspects
If no agreements are reached in this regard, the competent protection judge, that is, the one of the minor’s domicile, will decide. In the case of children under seven (7) years of age, they must be under the parenting responsibility of the mother, unless the best interests of the child are compromised.
In relation to the family institute in commento, the responsibility of parenting in accordance with articles 361 and 362 of the LOPNNA, may be subject to review or modification, as well as its inadmissibility and deprivation, respectively; The aforementioned regulatory elements provide for the following:
Art. 361. “The judge may review and modify the decisions regarding Parenting Responsibility, at the request of the person subject to it, if he or she is twelve years old or older, or of the father or mother, or of the Ministry Public. Any variation of a previous decision on this matter must be based on the interest of the son or daughter, who must be heard if the request has not been presented by him or her. Likewise, the Prosecutor of the Public Ministry must be heard.
Art. 362. “A father or mother who has been imposed by judicial means to comply with the Maintenance Obligation, for having unjustifiably refused to comply with it, despite having financial resources, will not be granted Custody and will be may judicially deprive the exercise of Parenting Responsibility. Judicial rehabilitation proceeds when the respective father or mother has faithfully fulfilled the duties inherent to the Maintenance Obligation for one year.
Finally, in accordance with article 363 of the LOPNNA, the applicable procedure for matters of parenting responsibility is that established for voluntary jurisdiction, provided for in articles 511 and following of the Organic Law for the Protection of Boys, Girls and Adolescents .
