La perdida de la patria potestad: una afectación al principio del interés superior del niño

Abstract

The Constitution as the supreme law of our Ecuadorian state establishes in Article 68 where it establishes the rights of freedom, which is responsible for providing protection to society, that is, to the family in which makes a recognition of its various types which are governed on the basis of equal rights and opportunities, in addition to this is responsible for promoting paternal and maternal co-responsibility to ensure that the duties and reciprocal rights that exist between parents and children are fulfilled. This legal institution known as parental authority, is only intended for parents in order to fulfill their roles and obligations towards their minor children, thus establishing the Ecuadorian Civil Code that parental authority is the set of rights that parents have over those children not emancipated. Subsequently, the Organic Code of Childhood and Adolescence was created in which from article 104 to article 117 establishes the legal regime of concepts, contents and rules to entrust the exercise of parental authority in case of recognition, after this the suspension of legal representation due to conflict of interest, authorization to leave the country and the limitations of parental authority that are among them: the suspension of parental authority and the judicial deprivation or loss of parental authority, the inappropriateness of limiting, suspending or depriving parental authority for the causes established in the same legal regulations, active legitimization protection measures and finally the restitution of parental authority. For this reason, we will analyze in the present work what are the grounds for the judge to declare the deprivation or loss of parental authority for one or both parents. Therefore, a legal study will be addressed to decipher whether these grounds for parental authority generate an affectation of the principle of the best interest of the minor and thus be able to determine whether these grounds would be the only ones for the judge to consider ruling the loss of parental authority of the minor. For this, in the development of this research work, conceptual and doctrinal definitions will be analyzed regarding this legal figure, for which reason, we will begin by establishing the background of parental authority, definitions, and Ecuadorian legislation that supports this legal figure, in addition to the respective grounds for the loss of parental authority and finally the principle of best interests of the child in order to establish whether or not there is an affectation of this principle by the aforementioned grounds. The research work will be carried out through the compilation of information from scientific articles, books, considering the use of a field research applying the technique of interviewing judges and clerks of the Provincial Court of El Oro that with their criteria and analysis will help us to establish a deep case study of this legal figure.