El interés del menor en el ejercicio de la patria potestadEl derecho del menor a ser oído

Resumo

The aim of the present work is to analyse the exercise of the parental authority when parental cohabitation exists and especially when not, from the point of view of the interest of the child. The methodology applied consists in analysing the main doctrinal opinions about the issue itself and making some contributions to them. The last Jurisprudence regarding all the topics I deal with and issued mainly by the Supreme Court has been studied. To such achievement I have divided my work into four chapters. The first one reviews the concept of the capacity to act and the interest of the child. Owing to the fact that the interest of the child is a vague legal concept and therefore is used in a discretionary way to justify any action having the child as an active or passive subject, I tried to specify what should be understood as such. This chapter develops the sense that, from my point of view, should have the interest of the child in clear connection with the evolutionary development of the child itself. To conclude that we just can consider that we are acting in the interest of the child when the action is not detrimental in any way to its development. In the second chapter I analyse the exercise of the parental authority in two situations, both when there is parental cohabitation and when it has ceased to exist. The exercise of the parental authority in cases of cohabitation does not usually cause problems, however, if disagreements between parents take place, these will be solved by consensus without having to go to court. On the contrary, when there is no parental cohabitation the exercise of the parental authority may become a problem that will negatively affect the children. Therefore the exercise of certain functions of the parental authority are transformed to adjust to the new situation, creating new legal figures such us visiting rights, alimony, and problems related to the use of the family home. The interest of the child in these situations will be affected by the parents� action. As a result of the exercise of the parental authority in non-cohabitation situations, two models of legal guardianship have emerged; one named sole custody and the other one called joint or shared custody. These models have been analysed in the third chapter from the point of view of the interest of the child, as objectively as possible. The most generally adopted model has been and is the sole custody. Nevertheless, there is nowadays a growing increase of those in favour of the shared custody between doctrine and Jurisprudence, resulting in the adoption of this model. Both models are justified on the basis of that according to its supporters, they are beneficial for the child. I have concluded after having analysed both that none of them should be considered in abstract terms as beneficial or detrimental for the child from the perspective of his interest. To accurately determinate this, it should be done in an individual and specific way. No generalisation in abstract terms is correct because one model can be beneficial for a child and at the same time be detrimental for another different child. In any event the joint custody model should not be compulsory imposed when none of the parents are in favour of adopting it. The last chapter is dedicated to analyse de child�s right to be heard. This right is set as the most significant expression of his interest. In the recent years this right has been limited by Jurisprudence and by the legislator without a logical reason for this change. Regarding the current audience development on the legal field, I have made some considerations concerning the way it is accomplished to ensure its effectiveness. This work has several conclusions; even though the main one is that the interest of the child should be delimited depending on the benefit produced for his evolutionary development. Furthermore, and according to the different legal guardianship models none of them can be considered in abstract terms as beneficial for the child, each particular case should be analysed individually. Finally, the child�s right to be heard in the audience should be regulated to prevent discretion and to encourage it in all fields where the child develops, not confusing his opinion with his interest.