Guardianship and custody
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Revoked the termination of shared custody without sufficient motivation or hearing from the minor
The Supreme Court (TS) has overturned a decision that removed shared custody in favor of exclusive custody for the mother, after no clear motivation was offered and the opinion of the thirteen-year-old son was not heard at that time.
The story begins with a divorce in which the main dispute between the couple was who would have custody of the child . Initially, the judge granted shared custody after considering that both parents had compatible schedules, lived close to the school, and neither had problems fulfilling their role. In addition, there was an adequate level of communication between the parents.
However, almost three years later, the Provincial Court changed its criteria and granted exclusive custody to the mother, mainly based on the fact that during the provisional measures, she had been the one taking care of the child and on some alleged breaches by the father. Surprisingly, the court did not consider it necessary to hear from the child , despite the fact that he was old enough and the law requires hearing from children in decisions that affect them so much.
The father appealed to the TS because, according to him, the child's well-being was not being given importance, and the court was not properly evaluating the previous factors and had been based on old justifications . The SC has ruled in his favor since it has not been explained why the change is better for the child nor have the breaches of the father been proven. And, above all, the child has not been heard, which is essential at that age according to the law and case law itself.
For all these reasons, the SC orders repeating the process , first listening to the child and properly justifying any decision that is made, remembering that the main focus should always be the child's best interest.
In a situation of conflict in the exercise of parental authority between parents or either of them with minor children, our professionals will be able to provide you with appropriate advice and defense of your interests and those of your children
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