Analysis of the legal procedure to determine the possession of the boy, girl, or adolescent based on ruling 28-15-IN/21 of the Constitutional Court

Abstract

The purpose of this article was to analyze the impact of Judgment 28-15-IN/21 from the Constitutional Court on judicial procedures for determining the custody of children and adolescents in the Ecuadorian judicial system. It studied the legal content of Judgment 28-15-IN/21, identifying the constitutional principles and the rights of children and adolescents that the Court highlighted in its ruling for proper application. The methodology applied was qualitative, aimed at explaining, predicting, describing, or exploring the "why" or nature of the links between unstructured information. The analyzed cases showed that justice operators coherently applied the parameters set by Judgment 28-15-IN/21 in custody cases. 

According to the case studies conducted, Judgment 28-15-IN/21 has positively influenced judicial procedures for determining custody of children and adolescents in the Ecuadorian judicial system. Justice administrators must evaluate each case following the parameters established in Judgment No. 28-15-IN/21 to grant custody to either the mother or father, ensuring the principle of the best interest of the child, equality of rights between parents, and the right of minors to be heard according to their developmental stage. However, there are gaps in cases where minors cannot express their opinion about which parent they wish to live with, indicating that the established parameters are insufficient for judicial authorities to assign custody. Therefore, it is suggested that the parameters outlined in Judgment 28-15-IN/21 should be incorporated into the Code for Children and Adolescents.