Análisis de los argumentos esgrimidos en la sentencia no. 28-15-in/21 que resuelve la inconstitucionalidad para confiar la patria potestad respecto a la igualdad de género y no discriminación entre los progenitores

Abstract

This research aims to analyze the arguments issued in veredict No. 28-15-IN/21, to resolve the unconstitutionality of parental authority versus maternal preference, and determine whether the statements issued by the judges resolved the equality of rights and non-discrimination between parents. Therefore, a doctrinal, legal, and axiological compilation of all the concepts and definitions related to parental authority, care, and custody has been made to establish the principles by which these institutions are executed. In the same way, the importance of the parent's gender equality regarding the custody of minor children and the requirements issued in the verdict above to exercise it is set, resulting in the viability of shared custody as a reference of formal and material equality and non-discrimination between the parents. Finally, it is concluded that, within judgment No. 28-15-IN/21, the minor's best interest is not considered paramount. Hence, not having this starting point does not ensure the equality of the parents, affecting the principle of co-parenting, the integral development of the child, and the effective exercise of parental authority.