Guardianship and custody

The Supreme Court (SC) has annulled a sentence in which thecustody of minors was decided without hearing one of the daughters, who wasover 12 years old, or taking into account that, after the first sentence, there was a newcomplaint of gender-based violence and a protection order against the father.

The story began when the mother sued forsole custody of her two children, withrestricted visits for the father and an alimony. The father did not oppose the custody being granted to the mother, butasked to see his children more and even requested overnight stays, as well as providing a lower alimony. The court initially awardedcustody to the mother, establishedvisits for the father with the possibility that, over time, they could include overnight stays, and established thepension.

The mother appealed because theminors did not want to stay overnight with the father and because a new report of gender-based violence was filed, which led to aprotective order for the children. However, the Provincial Court confirmed the initial decisionwithout holding the requested hearing with the minor or a psychosocial report.

The Supreme Court has clarified that theminors, especially if they are over 12 years old, have theright to be heard in these proceedings, and this right cannot be disregarded without a clear justification. Furthermore, incontexts of violence, it is mandatory to carefully assess any new fact that mayaffect the well-being of the children.

The Supreme Court's ruling overturns the previous decision and requires the Court of Appeals toreconsider, but beforelistening to the girl and assessing apsychosocial report, to ensure that the best interests of the minors are truly protected and that any custody and visitation measures are well justified in cases of violence.