La tenencia y custodia compartida de niños, niñas y adolescentes. Análisis de su aplicación en los juzgados de familia del cantón Guayaquil.

Abstract

Joint custody is a regime that allows both parents to jointly assume the care, education, and cohabitation of their children after separation or divorce, guaranteeing their right to maintain stable, emotional ties with both parents. In Ecuador, the 2008 Constitution and the Convention on the Rights of the Child enshrine the best interests of the child and parental co-responsibility; however, the Organic Code on Children and Adolescents does not expressly regulate joint custody, creating a regulatory gap that results in its limited implementation. Currently, in the canton of Guayaquil, more than 84% of custody cases are resolved in family courts, awarding custody of children under 12 to the mother, based on Article 106, paragraph 2. This determines that 11% are awarded to the father and only 5% are awarded under a joint custody regime, the majority through voluntary agreements between the parties. For these reasons, gender stereotypes, a lack of specialized training, and/or a lack of multidisciplinary analysis (emotional, psychological, physical, and economic stability, as well as the child's life) are considered essential for an analysis. International experiences (Spain, Uruguay, and Chile) demonstrate that, with legal reforms, technical guidelines, and ongoing training, shared custody can become the preferred model. It is recommended that it be expressly incorporated into legislation, evaluation criteria established, and annual official statistics generated.