OMAR ALEXIS VILLAMIZAR GALLARDO

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Judgment T-384/18
Reference: File T- 6,517,757

Guardianship action filed by AL, acting on their own behalf and on behalf of
their minor children SI and JA, against the 1st Promiscuous Family Court of Los
Patios (Norte de Santander).
Speaker Judge:
CRISTINA PARDO SCHLESINGER
Bogotá DC, twenty (20) September two thousand and eighteen (2018).
The Seventh Guardianship Review Chamber of the Constitutional Court, made
up of magistrates José Fernando Reyes Cuartas, Alberto Rojas Ríos and
Cristina Pardo Schlesinger, who presides over it, in exercise of their
constitutional and legal powers, specifically those provided for in articles 86 and
241, numeral 9 of the Political Constitution
For the protection of children's rights, the initials AL (mother and plaintiff), YV
(father and third party), SI and JA (children). The foregoing in order to
guarantee the rights to family privacy and the best interests of minors of 9 and 7
years of age respectively.
In the first instance, custody of the minors is left to the father who receives the
support of their grandmother, where he states that the father has everything
necessary for the children and legal medical opinions are set aside. This
instance is revoked by the constitutional court as a second instance where it
bases the capacities of both parents and joint custody.
The exercise of joint custody of the children when the parents are in fact
separated, divorced or the marriage bond has been declared null, the ICBF
explained that it is a right of the children and an obligation of the parents or
legal representatives regarding the upbringing, education, orientation,
conduction, formation of habits and discipline, among others.
According to the exposed facts, in this case the following legal problems arise:

(i)Determine if the guardianship action is the appropriate judicial mechanism to

question alleged procedural irregularities that occurred in the process of the
summary verbal process of custody and personal care formulated by AL against
YV with respect to children SI and JA of 9 and 7 years of age, as well as if to
censure the single instance sentence issued by the 1st Promiscuous Family
Court of Los Patios on July 24, 2017, within that judicial process.

If the answer to the foregoing legal problem is affirmative, enabling the general
origin of the action for protection against a judicial decision, the Chamber must
establish materially whether the court in question did not know the fundamental
rights to due process and access to the administration of justice that assist the
AL, as well as the best interests of the children SI and JA, by granting joint
custody to both parents in the single instance judgment dated July 24, 2017.

For this purpose, it must specifically examine whether the court tried incurred (ii)
absolute procedural defect, allegedly for printing the summary verbal procedure
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to the process provided for in the repealed Civil Procedure Code, in addition to
postponing and suspending the single hearing on multiple occasions without
impose the legal sanctions on the defendant YV and his legal representative,
and, for processing an exception equivalent to res judicata without having been
proposed by the defendant by means of a motion for reversal against the
application for admission of the lawsuit. In addition to this, it must determine
whether the censored judicial decision incurred a substantive defect by
recognizing and applying the figure of shared custody for both parents in favor
of children SI and JA, and (iv) factual defect by negative means, bypresumably
stop evaluating relevant evidence that shows YV's lack of suitability to exercise
custody and personal care of his two minor children, and on the contrary, rely
on evidence that was not ordered or controversial in the judicial process.

In order to resolve the issues raised, the Chamber deems the need to deal with
the following issues: general and specific requirements of origin of the action for
protection against judicial orders. Special emphasis on absolute, substantive
and factual procedural defects; the exercise of custody and personal care of
children from a constitutional approach that serves the best interests of children
and adolescents, as well as the right to have a family and not be separated from
it. Shared custody and single parent custody; and, later, it will analyze the
specific case.
The exercise of custody and personal care of children from a constitutional
approach that serves the best interests of children and adolescents, as well as
the right to have a family and not be separated from it. Joint custody and single
parent custody
In accordance with the Constitution and international human rights treaties,
children and adolescents are considered subjects of special protection, a
mandate that manifests itself, among other aspects, in the fundamental and
prevailing nature that their rights are recognized (art. 44 of the Constitution),
seeking to ensure a comprehensive training and development process, in
optimal and appropriate conditions.Based on the foregoing, the principle of the
best interest of children and adolescents has been consecrated, which allowed
the conception of the minor as an object of protection to be changed to the
current vision of the subject of prevailing rights.
the Chamber considers that the exercise of custody and personal care of minor
and disabled children is an obligation imposed by responsible parents on equal
terms for both parents, and that at the same time it seeks the prevailing well-
being of children , girls and adolescents realizing their best interests and the
right that they have to have a family and not be separated from it. Of course, the
breakup of the parents or the separation of the parents for any reason, cannot
automatically translate into the breakdown of the coexistence of the minor
children with their parents.

Although in Colombia there is no comprehensive regulation on the figure of

shared custody as an institution of family and child law, the truth is that based
on the systematic understanding of constitutional provisions (articles 5, 42, 44
and 93 of the PC), legal (art. 253 of the Civil Code and arts. 8, 10, 14 and 23 of
the Code of Children and Adolescents) and conventional (especially,
Convention on the Rights of Children), it is feasible to affirm that Parents can
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sign joint custody agreements as long as they are jointly responsible for the
personal care, upbringing and education of the minor and disabled common
children. Such joint custody agreements, which should become the general rule,
As stated in the central consideration of this order, the action for protection
proceeds exceptionally against judicial orders, as long as there is a violation of
fundamental rights and the general and specific requirements that make the
constitutional protection viable. This being the case, it is up to the Review
Chamber to determine whether the present case meets such requirements,
which it then proceeds to.
The Chamber observes that the plaintiff alleges that her fundamental rights
have been violated because the summary verbal procedure provided for in
article 435 of the Code of Civil Procedure was printed on the process, when she
should have been given the procedure provided for in articles 390 to 392 of the
General Code of Procedure. .
It is the family judge who, in each specific case, applying the pro infans
principle, as revealed by the evidence and the opinion of children and
adolescents according to their age and maturity, has the discretion to adopt the
custody system. which is more appropriate for minors.
DECISION

Based on the considerations set forth above, the Seventh Review Chamber of
the Constitutional Court, administering justice on behalf of the people and by
mandate of the Constitution,

RESOLVES:

First.- LIFT the terms suspended by order of April 3, 2018, in accordance with
the provisions of article 64 of the Corporation's Internal Regulations.

Second.- REPEAL the sentence handed down on October 26, 2017 by the Civil
Cassation Chamber of the Supreme Court of Justice, which reversed the first
instance sentence issued on September 18, 2017 by the Civil-Family Chamber
of the Superior Court of the Judicial District of Cúcuta, within the tutela action
brought by Mrs. AL, acting in her own name and on behalf of her minor children
SI and JA, against the 1st Promiscuous Family Court of Los Patios. Instead,
GRANT the protection of fundamental rights to the due process of the plaintiff
and to the best interests of the children who assist the minors represented SI
and JA

Third.- LEAVE WITHOUT EFFECT the decision adopted on July 24, 2017 by
the 1st Promiscuous Family Court of Los Patios, as well as the subsequent
actions that depend on said decision, within the summary verbal process of
custody and personal care of the children SI and JA that formulated AL against
YV (File No. 2015-00588). Instead, TO ORDER said court that within fifteen
(15) days after notification of this order, proceed to issue a new sentence that
meets the considerations set forth in the motivating part of this provision.
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Fourth.- RETURN, through the General Secretariat of the Constitutional Court,

to the 1st Promiscuous Family Court of Los Patios the original of file No. 2015-
00588 which was sent as a loan to this Corporation.

Fifth-. COMMUNICATEthis providence for the purposes provided for in article

36 of Decree 2591 of 1991, both to the acting and acted parties, as well as to
the third parties involved by the instance judges.

Communicate and comply,

CRISTINA PARDO SCHLESINGER

Magistrate

JOSÉ FERNANDO REYES CUARTAS

Magistrate

ALBERTO ROJAS RÍOS

Magistrate
With partial saving of vote

MARTHA VICTORIA SÁCHICA MÉNDEZ

General Secretary