Resumen

RUIZ-RICO RUIZ, Catalina. The special constitutional transcendence of shared custody in Spanish law through jurisprudence. Bol. Mex. Der. Comp. [online]. 2022, vol.55, n.164, pp.226-248.  Epub 14-Jun-2024. ISSN 2448-4873.  https://doi.org/10.22201/iij.24484873e.2022.164.18123.

The objectives of this study are focused on investigating the constitutional dimension of shared custody in Spanish Law through jurisprudential development and the use of comparative law; the discriminatory effects in the assumption of family obligations; the interpretation of the interest of the child from the perspective of the right to equality; the scope of co-responsibility as a fundamental right. The methodology is based on the application of the "gender perspective" to stereotypes in child care and the contribution of ordinary jurisprudence to parity in family responsibilities. Among the results, the constitutionalization of the interest of the child stands out, the convenience of approximated the institutions of parental authority and joint custody to avoid unequal treatment of children, adolescents and parents; the risk of discrimination against parents due to family and personal circumstances based on the judicial criteria of joint custody and the configuration of co-parental responsibility as a right. As limitations, the excessive judicialization of shared custody, the supremacy of the interest of children over the fundamental right to equality, and the non-binding nature of co-responsibility in equality legislation. The originality lies in the application of an inclusive and non-exclusive gender perspective in the interest of the child; the unconstitutionality of exclusive custody as a general regime; the evolution towards co-responsibility as a fundamental right; in addition to the special constitutional importance of shared custody due to the lack of doctrine of the spanish Constitutional Court.

Palabras llave : Shared custody; Discrimination; Gender perspective; Interest of the children; Corresponsibility.

        · resumen en Español     · texto en Español     · Español ( pdf )