By Daniel Labbé Yáñez (Published in magazine "Punto Final" No. 717, September 2010)
As a final example of disaffection and the inability to generate agreements, it happens that many parents end today by converted children in the trophies of their battles separations in that kind of loot that one of them gets to take home.
on justice reform in 2005 launched the Family Courts, had among their motivations to regulate precisely the fact that arbitrary. The law that created 19,968 was raised as one of its objectives to ensure the children "the exercise and enjoyment and of their rights and guarantees. " The relationships with both parents after a separation is, of course, one essential.
However, after five years of operation, even with the introduction of several changes to its improvement, the reality of who must resort to the Family Courts to maintain ties with their children is another: "I got tired of the mother of my child maltreatment in a systematic and severe paseándolo by the family courts, making it speak against me, and that family court support of this, "triggers David Abuhadba, referring to personal reasons in 2008 led him to form the band Love Dad.
Too many parents who arrive there with empty hands. We talked with some of them and seek answers to the debts of the Family Court in a recent research on its operation. A retrograde custody law, the deficit in the quality of the system and the irrationality of some mothers appear to be the culprits in the loss of children "booty." Laws
powdered
If a parent today should prosecute his demand to bond with a child is not because it has naturalized the fact that after a breakup is the mother who takes care of him. This decision is in fact its legal basis in Article 225 of the Civil Code, which states that "if the parents live apart, the mother plays the personal care of the children."
Since its creation in 1855 - has been more than 150 years, so it is valid to wonder if mothers are now only able to raise a child. "The rules have a contemporary logic. Held in a historical period and in a particular sociocultural context, and that is where they are understood. Today, the 225 lacks support in legal, social and cultural rights, "says the lawyer Felipe Silva, for whom the validity of that article is now" deplorable. "
The rule in question for him would also unconstitutional features. And is that while you may then ask the parent caring for a child "from abuse, neglect or other just cause" as stated in the Act, the 225 "establishes a priori criterion, discriminative, based on a parameter gender. What can not be, because the Constitution itself states that all men are born free and equal rights, "Silva questioned.
in Congress today is a bill drafted by Love Dad, among other objectives, seeks to establish a shared custody to both consider parents in the care of children. While it is based on Article 225 which is still resolving the matter in the Family Courts. A practice that has been exposed as a clinical psychologist, Christian Cejas, "invisible to both children and parents who now go beyond the simple past functions provider, assuming maintained that all mothers are able to exercise exercise parental functionally. "
"The downward spiral"
Like a hard rite of initiation, the new members of Father's Love show them in welcoming the "Last Letter." To know is to find out how you can suddenly become great children when their parents behave like children. In the letter, a 15 year old mother prosecuted for having made him hate his father. Although the identity of the man was booked, the story is real and he ended up committing suicide after the last line written.
While this is the most extreme case of the group known in the histories of their partners, who are already in the 15 000-also the children always lose. In their meetings and through the site www.amordepapa.org have circulated stories that have enabled them to develop a sort of chronology of the process that must pass who comes to the family courts to see their children. They called it "the downward spiral."
Although some are in better luck, the fact is that the following is a dynamic that is repeated in the stories of many of those affected: After a wait of up to three months ago for a hearing, a trial starts without clarity about its duration. The chronology continues with the possibility of having to face a "false accusation" sexual abuse being the most common. This would cause the separation of the accused with her son by the Court, who could only see once again proven his innocence. Meanwhile, "relates the theory appears in the lower-called Parental Alienation Syndrome, whose main effect is the emotional distance. The rulings governing the visits indicate that they are generally held every 15 days, ie only twice a month. This was not the last step because, according to the "downward spiral", the little time allotted by the system must be added the continued failure by who has the custody of the child.
For example, in late 2007, the son of Patricio Sepúlveda his former partner took him to Belgium for a year and a half, authorized by the 2 nd Family Court of San Miguel, which ignored the facts presented by him, suggesting that she would not return within 90 days agreed. In another case, in July 2008 Fixed Gabriel's son died in an accident at 11 years and although he traveled from Argentina could not come to the funeral in La Serena, by the mother before his arrival. Nor are the other two children were able to see his father in almost four years, more than 120 breaches of the Visitation of women.
Although from the Family Court may be issued arrest warrants against mothers who do not comply with the regime, it occurs before penalties are enacted. If they are paid just comes next force measurement. This is what happened in March 2008 with one of the few known cases where an arrest has been effective. From the Third Family Court of Santiago ordered the arrest of PVS, then you do not cancel the monetary penalties were imposed, both a result of not allowing punishments for a year and a half that her former husband see his daughter. Indeed, in this case the detention could be enforced because the woman went to a hearing where the police intercepted.
And it is very common that when the Family Court exudes a trade to get the police did not arrest, both by the limited powers of the document as the strategies required to not be deterred. There is, moreover, a joint effort between the two institutions to resolve this problem, as it was established, for example, the Forensic Medicine Department for matters of expertise related to DNA and mental health.
mother
abuse
René Espinoza's case, now national president of Love Daddy, perhaps covering all conflicts mentioned. Faced with repeated failures in visitation in 2007 it was decided to ask given the care of his daughter. One option that may allow a judge "... when the child's interests makes them indispensable, whether by abuse, neglect or other just cause ..." But the law states the intention to face cost: The other party accused him of sexual abuse against the small of 4 years. "It's almost an unwritten rule in the Family Courts. That is, if you want a man shit acúsenlo sexual abuse, 'says René. Finally, to prove his innocence after a trial prosecutor, where he demonstrated the falsity of psychological testing conducted for the girl. As explained by the expert who analyzed the statement against him, his daughter was forced by others to accuse him. The whole process cost the disbursement of nearly 10 million pesos and guess what same in tears. The most serious is that it's been more than two years without being able to see it and now must use both a therapy for rebind. David Abuhadba
A similar thing happened. After separating his son turned against him. "When I saw, I screamed 'kill yourself, kill yourself, you're not my dad,'" he says. For him, this reaction was explained by the so-called SAP, the Parental Alienation Syndrome, named after the mid-eighties by psychiatrist Richard Gardner. In a study conducted in divorce cases or destructive, this teacher described him as "a set of symptoms resulting from the process by which a parent, using different strategies, becomes the conscience of their children in order to prevent, hinder or destroy its links with the other parent, until it contradicts what should be expected from his condition. "
However, just as SAP has not been recognized as a syndrome by the World Health Organization, it has not happened in Chile, so it is not even a debate within the Justice family. The picture explains the lawyer Felipe Silva: "The psychological science has spoken in very weak in this respect and to be well within the mother who creates science, legal science us from little validity we can give. "
cases reviewed so far could be summarized in one concept: "Padrectomía." The neologism was coined by none other than a judge of the family justice, Alba Llanos, who after working for 27 years in the judiciary decided to prioritize their health before the collapse of the Courts and resigned. Before leaving office, September 30, 2007, leaked to the newspaper La Nación perhaps his last sentence: "It is padrectomía directly take the father to a child and a judge has no ability to respond. The systems are not designed according to the nature of family conflict. "
Hastens the stride management
What has been done, then, to improve family justice? Since its launch, a series of initiatives, both judicial and legislative power, have come to try to counter the deficiencies in the functioning of the system. Its effects and results were investigated by the teachers of the Universidad Diego Portales, Claudio Fuentes and Felipe Marin, and the attorney Erick Rios, the Justice Studies Center of the Americas (CEJA), the entity that commissioned the study. A study carried out during late 2009 and early 2010 in the capital which is about 25% of family cases around the country, and whose results were released recently through the "Report on the functioning of the family justice in the courts of Santiago."
First, the research concludes that, thanks mainly to the enactment in 2008 of the 20,286 law by Act of Congress and the Supreme Court from 1998-2009, changes were made in the system performance under the new justice family "from the standpoint of management." Greater resources, rise in the number of judges and staff, reducing the causes that come to court, to the ranks of users waiting for care and decreased waiting times for hearings, as noted the researchers are among the most important advances. However, reduce and control the duration of the entire process of a lawsuit is one of the most relevant debt load still management that, according to the report.
The quality does not go into
main thing, however, is the warning of the professionals in that "as important, urgent and pressing as it was to solve the management" is solving problems related to quality. "These are basic problems that put the risk on meeting the minimum standards required of a modern judicial procedure and respectful of the rights of people who attend it, "warns the document.
The researchers proposed to improve the quality of the system is to create the regulations that establish specific changes, such as defining a more optimal actions that correspond to the parties to the lawsuit and hearings processes, standardize the presentation of evidence; select cases that warrant a trial and may be penalized in a single hearing, and permit the voluntary declaration of the parties, to take the oral nature of a trial. However, the report says, improving all that means also the end to one of the most important and alarming failings of this new justice: the low level of some lawyers who litigate in the Family Courts.
"This study has allowed us to conclude that continues to be a very serious problem to the very poor quality and preparation of some lawyers, accused the researchers of the UDP and CEJA. One observation that is in fact shared by Felipe Silva also a lawyer, who argues that the family justice "there are many people who have an old school, mannose, which makes use of malpractice litigation and does not know."
According to the report, the issue goes to the family courts are considered by a percentage of these professionals as a place where no further preparation is required to practice, but nonetheless is very profitable. The situation is compounded when you consider that "their professional shortcomings would enjoy a high tolerance within the system, and is even supplied by the same judges to try to prevent harm to the parties", as stated by the document, which then warns that this "distorts the role of both judges, altering one of the cornerstones of our legal system. " Judges
the bench is because the role of judges in the new family justice is crucial. Silva To counsel the family courts are simply "A circus" with judges who continue doing their job as they did in the missing Juvenile Courts, "to the point that talk about 'my court'" to settle debates, according to chart. But, although critical, adding that the performance "poor" attributed to them must also understand the inherent complexity to resolve all matters are there for a matter of time. David Abuhadba, however, the issue is much more simple: "If the system keeps them from making a good hit," he says, "rebélense against him, please call all agree, ethically, make a stop and it is corrected."
Al
regard, the Report on the functioning of family courts in Santiago "is much more cautious and more technical. On the one hand, his criticism has to do with a kind of automation of the work of the court, resulting, for example, prioritize meet all regulatory elements will require determining what is the purpose of trial and the facts to prove it, making it difficult for the parties to present a less abstract one case.
The research outlines a very enlightening example of this situation, precisely the case of a father who demand personal care your child. "The father argues only that the child would be better with him than with the mother (in other words, demand based solely on the interests of the child). Since the determination of the order of the trial is conducted in the abstract, according to a preset template and without any discussion or analysis under particular case, often it includes "a determination that affect any disability or not parents', in circumstances neither party has argued that contrary to some disability affects him, "says the study. As a result, concludes, "this leads to the decree as expert evidence the production of reports psychiatric and / or toxicology, which involves unnecessary overhead of the network and a delay in the process. "
Moreover, the study found the maintenance of practices inherited from the former justice. Among them, a passive attitude as to prevent inter-trial expert information of poor quality, the tendency of a large majority to perpetuate the tradition of writing system, he understood that the parties were not entitled to be evidence, missing with This current oral status, and, mainly, the time spent to deal with controversial cases. Regarding the latter, the research entered a controversial statement an unidentified private attorney, which states that "in casual conversation the same judges would have said` can not do more because they are poorly evaluated ', and similarly, those judges who take the time required for hearings quality would be the lowest evaluated within the Judiciary. " Growing
no doubt that the laws, acts and general policy changes already introduced and those to come, helping to improve the functioning of the ill-fated family justice. In fact, the Congress is today a project to it, created by the group Love Dad, and introduces amendments to the Civil Code and other legislation, in order to protect the integrity of the children if their parents live apart. During the government of Michelle Bachelet, however, removed the urgency to another similar proposal by the parliamentary Jaime Naranjo. About the fate that should run this new initiative, the lawyer Felipe Silva is categorical: "I think it's not a matter very difficult to reform, it is easy to argue, so I guess this goes through an issue of political will and nothing else. "
regard to the latter, it is important to emphasize a final and decisive conclusion in the report of the scholars UDP and CEJA. "Without proper implementation, including training to judges and administrators, no legal reform can succeed, as hard as he has shown us reform the family justice." An urgent need, as much as to stop seeing the benefit of a child, ironically, as a minor issue.
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