Problemas de aplicación del principio de corresponsabilidad parental. La necesidad de fortalecer la biparentalidad y la custodia compartida, ante una decisión de la Corte Constitucional del Ecuador.

Abstract

In the context of the debate about whether to entrust parental authority of the minor to the father or the mother in cases of separation and divorce, the Ecuadorian Constitutional Court has ruled in favor of joint responsibility of the parents (Case No. 28-15-IN), but it requires that it be one parent or the other. Given that joint parental responsibility is the desired framework, it is presumed that the figure of shared custody is the most appropriate, contrary to the Court's resolution and the Organic Law. This article exegetically contextualizes the inconvenience of the Court's decision in light of the hierarchically superior regulations, comparative law in 4 countries, jurisprudence, and the recent scientific view of the harmful effects of single parenthood, at the international and national level. It is concluded that the principle of the Best Interest of the Child implies that the absence of guarantees for bi-parenting, and its specific legal figure for cases of separation and divorce, shared custody, is socially dangerous. It is proposed to refocus the law and public policy towards the prevalence and protection of bi-parenting and shared custody in dissolved families.