La no valoración de los medios probatorios por parte del juzgador en los procesos de tenencia

Abstract

The thesis work under the modality of case study has as the main objective to analyze the legal effects that is produced by the non-valuation of the evidence on the judge in ternure processes , for this reason, the 07201-2015-00331 process was substantiated in the Judicial Unit for Family, Women, Children and Adolescents in Santa Rosa city based on the fact on March 13th, 2015 where the plaintiff party through a claim requested that the legal possession of his daughter. In the fact grounds presented by the plaintiff told that her daughter's mother acts in an irresponsible manner, and in the year of 2011 the minor was neglected, until the month of May 2014 the minor’s mother went to the father’s domicile assisted by the public force alluded that the minor was illegally detained, proceeding to take her and transfer her to Guayaquil city, and a few days later, the minor was returned by the mother, leaving her with her father in Santa Rosa city. The plaintiff party submitted and requested documentary, testimonial and expert evidence in his favor, while the defendant was declared under rebellion for did not attend to the hearings despite she was legally cited according to law. The work was developed through contextualization, describing the facts of interest and setting out the objectives of the investigation that allowed to develop the theoretical-epistemological substantiation of this case. The theoretical bases represent the central nucleus of the investigation, it is where the conceptualization of terms used in the development of the work is found, as well as, the legal analysis of the regulations applied in the substantiation of the process; that is to say, the Code of the Childhood and Adolescence and Code of Civil Procedure, then a comparison is made with the current standard, which allows a doctrinal, theoretical and legal analysis of the evidence, its assessment and the legal effects raised in the case. In the methodological part of the work, methods and techniques were used that allowed to collect necessary information to develop our case study, keeping in mind the guidelines that exist for legal research, so we used both physical and digital sources; that is to say, written books by jurists, articles of scientific publications, legal bases both National and International; in addition, the realization of field research that has allowed direct contact with our object of study, in this way, it has been achieved necessary information through the realization of interviews with judges and lawyers in free exercise who contributed with their criteria regarding the subject. Likewise, it was found that there are various criteria among legal professionals regarding the assessment of the evidence and the legal effects that occur when they have not been considered in their totality at the moment when a justice worker resolves situations of tenure legally. Finally, it is essential to mention that one of the constitutional guarantees consists mainly in the application of healthy criticism, assessment of all the evidential, in short, the substantiation and motivation of judgments, even more when it is about situations where are the rights of children and adolescents are immersed.