Argentina: Criteria for Child Custody Decision-making upon Separation and Divorce

Cecilia P. Grosman*and Ida Ariana Scherman**

I. Introduction

Regulation of the parent-child relationship upon separation and divorce is of great importance in Argentina –as is the case in other countries – due to the remarkable increase in the rates of divorce and dissolution of de facto families. Our children’s future could be seriously impaired if the legal system cannot assure the active and continuous involvement of both parents after parental separation, so that both parents share responsibilities and decision-making powers on an equal basis. Therefore, the social strategy shaping future legal reform in the area of custody law must be to focus on the affirmation of co-parenting and to leave behind the old fashioned paradigm of everlasting marriage.

II. The Parent-Child Relationship Under Patria Potestad

A. Definition

In Argentina, the legal system governing the parent-child relationship is called patria potestad. The operation of patria potestad is fully regulated in the Civil Code. In addition, it is construed by Argentine courts in a manner consistent with the provisions of various human rights treaties to which Argentina is a party, and in particular, the 1989 United Nations Convention on the Rights of the Child (CRC).1 Since 1994, Argentina has incorporated several human rights conventions into its Federal Constitution.2 Due to their constitutional rank, these international human rights’ conventions are thus considered relevant to Argentine judges’ rulings and should be applied above any other rule.

The Civil Code defines patria potestad as “all the duties and rights parents have in relation to the child and his/her property for his/her protection and integral upbringing.”[It would be good to footnote here to the particular section you are quoting. Is it Section 240, which you cite in the later sentence, or something else? Also, I am not positive that “integral” is the translation you intend. It could be used here, but I am wondering if “complete” is closer to your meaning? But I defer to you on that, as I haven’t seen the original in Spanish. ] Patria potestad would include all of the duties and rights related to choosing the child’s place of residence, the allocation of everyday child-rearing responsibilities, and the provision of maintenance for the child, as well as the authority to make major decisions relating to the child’s education, health care, and legal representation. The law applies equally to children born within traditional and non-traditional families. Section 240 of the Civil Code3 provides that the parent-child relationship extends to every child and every parent, regardless of the parent’s marital status, and prevents any discriminatory treatment.

Argentina continues to use the term “patria potestad,” which is of Latin origin, even though its literal translation means “the power of the father.” The term does not accurately convey the actual functional meaning of the parent-child relationship, which is lead by both parents and is intended to serve the child’s best interests.4 This is why legal scholars advocate the need to change this denomination and to instead use a term that rigorously embodies the changes that have taken place. “Patria potestad” should be renamed “parental responsibility,” which conveys the new spirit that should inspire the parents’ role in the performance of the duties of care and education.

B. The Allocation of Parental Rights and Duties under Patria Potestad

1. When Both Parents Live Together

If a child’s parents – whether married or unmarried - reside together, they both jointly exercise “patria potestad,” and consequently, the acts performed by either of the two are presumed to be authorized by the other one.5

2. When Parents Live Apart

When married parents separate, divorce, or their marriage is annulled, both parents are still holders of patria potestad.6 The same is true for unmarried parents who live apart. It is the parent with whom the child lives, however, who actually exercises the patria potestad,7 which is referred to as tenencia,8or physical custody of the child. Under the Civil Code, only one parent may exercise tenencia, or physical custody. This parent has the power to take the initiative to lead and educate the child. The other parent retains the power [right?] to enjoy adequate [Ida, would “reasonable” be a more accurate translation? “Adequate” implies the bare minimum.] communication with the child and to supervise the child’s education.9 In fact, this parent is entitled to control the way the other spouse performs the main task of raising the child.

3. Joint Decisions and Obligations

Under the law of patria potestad, certain acts involving a child under the age of majority require the express consent of both parents, regardless of whether the parents live together or separately, or whether they are unwed, married, or divorced. These include: 1) the marriage of a child; 2) the emancipation of a child; 3) the decision of a child to join a religious community, the army, or security forces; 4) the child’s departure from the country; 5) involvement of the child in court proceedings; 6) disposal, with judicial permission, of real estate or other registered children’s property that both parents administer; and 7) exercise of the administration of a child’s property, unless one of the parents delegates it to the other. In all of these circumstances, if one of the parents does not provide the authorization, or is unable to do so, judicial resolution is required. In those cases, the courts will decide according to a family interest standard.10 [The “family interest” standard is not a familiar concept to American lawyers. We are familiar with a “best interests of the child standard.” Could you explain in a phrase what the “family interest” standard is?]

Both parents are required by law to support their children and ensure that they receive proper care, regardless of who has residential or physical custody.11

4. Need for Reform

Currently, the Civil Code contains no provision for joint custody. When parents live separately, the law grants “the exercise of patria potestad,” to the parent who lives with the children, reserving to the other parent only the right to visitation, the right to supervise the child’s upbringing, and the right to participate in those decisions that patria potestad requires be made jointly. In 85-90% of the cases, either through parental agreement or judicial decision, physical custody is awarded to mothers, so consequently it is mothers who typically exercise patria potestad.12

As will be discussed below,13many judicial decisions have accepted parents’ agreements that provide for joint legal custody after divorce, even though current legislation does not specifically provide for this. There is a general awareness on the part of legal scholars of the need to strengthen and promote true co-parenting and a meaningful sharing of decision-making powers after parental separation or divorce.14 Legal reform is needed in Argentina so that future legislation will specifically provide an option for both parents to maintain joint legal custody of their children, to ensure that children are not deprived of the active and continuous involvement of both parents following the dissolution of marriage or the separation of cohabiting couples.

III. Determination of Physical Custody upon Separation and Divorce

A. The Process

According to Argentine law, parents may decide on the custody and access arrangements for their child by agreement in divorce or separation proceedings. Unwed parents may also determine by agreement which parent is to exercise physical custody over their child.15

Custody agreements must be confirmed by the courts, however. The standard of “the best interests of the child” therefore limits parental autonomy.16 Judges may object to certain provisions of a parental agreement if they believe they will impair a child’s welfare.17 But to tell the truth, judges seldom do so. They trust the parents, and rarely investigate if such agreements really benefit children. Moreover, in one case in which the child’s defender or the judge had made inquiries prior to the approval of a parental settlement agreement and the court had ordered a custody evaluation of the child’s home environment and educational status, the Supreme Court denied the appointment of a social worker since it was deemed an unjustified interference in family life. The underlying judicial rationale is apparently that the assessment of a child’s best interests lies with the parents, when there is no apparent conflict between them.18

When parents do not reach an agreement on custody or access, or when the court determines that some aspect of the parental agreement will impair the child’s welfare, the court will pass judgement on these issues.19 In any court proceedings involving minors (or other persons lacking legal capacity), the minors’ public defender is necessarily involved. The public defender is qualified to initiate legal actions and appeal to a higher court for review of the decision of a trial court or administrative agency.20 In custody proceedings, the opinions of experts - mental health professionals and social workers - provide a specialized approach to conflict resolution. The experts’ reports are either ordered by the judges or provided by the parents.

Court proceedings are also an option for a parent who does not have tenencia (physical custody) to resolve a disagreement regarding the child’s upbringing. Because the system of patria potestad provides only for the award of tenencia (sole custody) to one parent, that parent makes day-to-day decisions regarding the child’s education and upbringing, but the parent not living with the child is still entitled to rights of visitation, supervision, and control.21 The non-custodial parent’s disagreement or opposition to decisions made by the custodial parent may be addressed privately, or resolved in court.22

B. Substantive Norms and Factors

1. Best Interests of the Child and the Maternal Presumption

i. Children Under the Age of Five

Under Argentine law, there is a rebuttable presumption that custody of a child under the age of five should be awarded to the mother, unless this would seriously impair a child’s best interests.23 Only if the evidence indicates that such an award will be contrary to the child’s physical or mental welfare will custody of a young child be denied to the mother.

Some scholars have suggested that this maternal preference should be abolished, so that judges are always free to decide what is best for a child’s welfare on a case by case basis, consistent with the 1994 Constitution, which incorporates the “best interests” standard of the CRC.24 Ex ante sex discrimination should be avoided. In some situations, even though there is no asserted risk to the child’s physical or mental welfare, there may be difficulties within the mother-child relationship that would still indicate that the best interests of the young child would be served by a grant of custody to the father. Abolishing the presumption would by no means prevent judges from considering a child’s age when awarding sole custody to the mother under the “best interest standard.”

ii. Children Age Five and Older

When children are five years of age or older and there is no parental agreement, custody will be awarded to the parent who is considered the more fit by the court, using the “best interests of the child” standard required by the Constitution25 to assess the degree of parental competence and suitability. How are the best interests of the child determined in each particular case? As we all know, the standard itself is indeterminate. Courts’ decisions rest upon a balance of cultural, social, and historical factors. Nowadays, the child’s well-being is based on universally accepted ideas about children’s needs and give a concrete meaning to this standard. These ideas are embodied in human rights treaties, and in particular, the UN Convention on the Rights of the Child. [Ida, it is not clear to me what further guidance you are suggesting that the CRC provides as to the content of the “best interest” standard. The large section of Article 3 of the CRC that I moved to fn 16 and reduced in size did not really suggest further content, but simply established the standard itself. I would recommend either creating a footnote here with specific examples and citations to the relevant articles, or deleting this sentence, as it is fairly vague at this point.]

It follows that child custody will be awarded to that parent who is in a better position to protect and enforce the child’s rights, which always reflect the child’s needs. Judges assess the child’s interests by engaging in collaborative problem-solving, together with experts in other disciplines.26

2. Facts Used in Assessing the Best Interests of the Child

Court-recorded information suggests that certain criteria are frequently considered by judges when awarding custody to one of the parents.

i. Continuity of Residence and Care

The initial residential arrangement and past caretaking remain very important factors. The parent with whom the children actually lived following the separation is often favored by a “status quo” preference. Custody is often awarded to this “primary caretaker” parent. In utilizing this presumption, judges consider the length of time a child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. Such an award can only be modified when alleged reasons justify a change of the place of residence. 27 The standard that generally governs the modification of child custody requires a showing of a material change of circumstances and that such modification is in the best interests of the child.

On the other hand, this “status quo” preference is not a suitable standard when such stability has been achieved by successful long-term concealment following an abduction, or when contentiousness and hostility protract litigation to achieve a long status quo period. Therefore, such conduct should be appropriately evaluated by judges, because they do not contribute to the children’s welfare.

ii. Willingness to Facilitate Visitation

Sometimes the final decision on custody is based on the identification by the judge of one parent who would best guarantee that the child would maintain contact with the non-residential parent. This criterion protects the child’s constitutional right under the CRC28“to maintain personal relations and direct contact with both parents on a regular basis … .”29 Custody has been modified due to mothers’ unwillingness to facilitate visitation and in order to preserve a close relationship between the child and the non-residential parent. A collaborative attitude exhibits real fitness to understand the child’s interests. Parental intentional interference with visitation has also been recognized as sufficient grounds for modification of custodial orders.30 [I couldn’t tell if you were making a distinction between unwillingness - discussed in the sentences above - and intentional interference - discussed in the last sentence. If not, the last sentence may repeat the second sentence, and could be deleted.]

iii. Siblings

Courts will frequently try to award the custody of siblings to the same parent.31Nevertheless, in exceptional circumstances, split custody has been ordered on the grounds that it is in the best interests of the children.32 Judges have observed that none of the factors reviewed in this section, including the reluctance to separate siblings, provide a “one-size-fits-all” standard for application in every case. For example, the Supreme Court of the Province of Buenos Aires decided that, due to special circumstances and on the basis of the evidence regarding the children’s health and overall care, a custody decree that did split the siblings served the best interests of the children in that case.33

iv. Parents’ Availability

The parent who can be present and accessible to the children is often considered to be the responsible parent. In one decision the court ruled that, considering the child’s age and the fact that both parents were equally fit, custody should be awarded to the parent who would not be frequently absent due to job requirements.34
v. Gender of the Child

A few older rulings prioritize the importance of a child’s ability to identify with a parent of the same sex . This criterion was recently applied in a ruling of the highest court of the Province of Buenos Aires.35 The Supreme Court held that a young girl should be with her mother, expressing a gender-based presumption that the mother could provide better understanding and care. The dissent voted to reject gender-based presumptions in custody cases, and emphasized that custody questions must be determined on an individual basis. Another court expressly rejected a father’s petition for modification of custody of four boys, based on his allegations that he was in a better situation to play sports together with the children. In this case, the judges observed that those activities could be pursued equally as well while the children continued living with their mother, because they could be carried out outdoors.

vi. Domestic Violence

Domestic violence and child abuse are also relevant factors in disputed child custody cases. Judges weigh any evidence of domestic violence in determining the custody of minor children, and the parent perpetrator of domestic violence has been considered unfit for parenting.36[Ida, I think there is a problem with the translation of the next sentence, and I simply can’t figure out what it is supposed to say. I think something accidentally got left out of it.] Alleged parental child abuse with no attempt to prove it has been considered as deeply contrary to child’s mental health of the daughter who was submitted to real mistreatment due to repeated medical evaluations.37

3. Non-acceptance of Discriminatory Criteria

Our legal system is based upon the respect for human rights. Consequently, sex, gender, race, religion, and political ideas cannot be a determining factor in awarding custody of children. These circumstances can only be considered when they have a negative effect on the child’s development.

Several years ago, custody was denied by a trial court to a mother because she was a follower of Jehovah’s Witnesses.38 When the Supreme Court of Argentina reversed the ruling, it established that a parent’s lifestyle, personal feelings, and beliefs, whether political, religious, or ideological, can only be evaluated when they have a negative impact on the child’s life. Should the court’s approach be otherwise, due process and equal protection would be denied, and parental fitness would not have been appropriately considered when making the decision.39

Although prejudicial attitudes have prevented gay and lesbian parents from successfully petitioning for custody or visitation rights in court, recent decisions reflect changes within the judicial and social spheres in this area as well. In one case, after a child had lived with the father for five years, the court rejected the mother’s petition for custody based on the father’s gay sexual orientation. The judges determined that the father had exercised paternal duties adequately in the context of the mother’s illness. Even though his sexual conduct was not conventional – he lived with his gay partner in separate rooms - the father was awarded custody. The rationale for such a decision is that if a parent’s behavior does not jeopardize the child’s development, a different sexual orientation cannot be associated with parental unfitness. A different solution would have meant unacceptable discrimination.40

In another recent case, a court granted access rights to a lesbian mother. The court observed that preventing visitation, without considering the deep positive feelings the child held for his mother, would ignore the paramount standard of the “best interests of the child” recognized in the CRC,41and discriminate against the mother on the basis of her sexual orientation. Moreover, the court reasoned, denial of visitation on this basis would violate anti-discrimination legislation and the protection of privacy embodied in Section 19 of the Argentine Constitution.42

4. Joint Custody

As discussed above,43current legislation does not contemplate joint custody, because the Civil Code only provides for the award of sole custody. For many years, judges rejected joint custody parental agreements,44 basing such decisions on their common perception that conflict was the norm for divorcing parents. Opponents to joint custody also expressed concern that children who were subject to joint custody would never lead a stable life, since authority and decision-making regarding a child’s upbringing and education would be vested in more than one parent.

Proponents of joint custody, however, assert that a child’s good relationship with both parents ensures important emotional benefits that outweigh the alleged lack of stability. They further contend that cooperative co-parenting can be achieved under both sole and joint custody arrangements.45

i. Joint Custody Agreements

Nowadays, legal scholars and courts approve joint custody agreements upon divorce.46 Among other reasons, they express greater recognition of individual autonomy in family matters and accept the view that some parents can manage this complex arrangement successfully, resulting in a better solution than a judicial adjudication. Many judges have maintained that in fact the law does not prohibit joint custody -- it simply does not regulate it. Moreover, due to the constitutional rank of the UN Convention on the Rights of the Child, judges must apply that convention and, if necessary, interpret, modify, or abolish old rules whenever those rules ignore, restrict, or deny children’s rights and there is no need to wait for legislative intervention.

When judges recognize the legitimacy of “private ordering”47 -- the notion that divorcing parents should have broad powers to negotiate their own custodial arrangements -- they endorse the idea that parents are entitled to develop their own family life plan because they are in a better position to assess their fitness to carry out such a plan and to evaluate what is best for their children. Legal scholars and judicial opinions have emphasized the advantages of joint custody:

a) both spouses continue to function as parents and participate equally in all of the different aspects of child care, permitting parents to almost evenly split the amount of time the child spends with each parent and thereby equalize the time each parent dedicates to parenting, as well as their own personal and professional lives;

b) children grow up with both parents;

c) there are fewer loyalty problems;

d) there are no outside parents;

e) even though the law does not regulate joint custody, children need both parents;

f) high levels of attachment in the parent-child relationships diminish divorce trauma on children; and

g) both parents are involved with everyday child-rearing responsibilities, as well as the authority for major decisions relating to the child’s up bringing and education.

Judges should support a presumption in favor of joint custody, because it is consistent with continued meaningful parenting in a reorganized family. Even though, in certain circumstances, joint physical custody could be detrimental due to constant parental conflict or geographic distance; in general, joint custody affirms the idea that in the eyes of the law, fathers should play a continuing role in their children’s lives, despite divorce or separation, and it is consistent with the “best interest” standard.48

ii. Court Decisions Favoring Joint Custody

In recent decisions, judges not only recognize the legitimacy of “private ordering,” but have imposed joint custody through their judgements when they regard this arrangement as in the best interests of the child.49 In one case, the judge even decided that joint custody could contribute to overcoming parental conflict. Both parents had petitioned for sole custody. Nevertheless, the trial court decided to allocate joint custody for the following reasons. (1) Both parents would participate equally in all of the different aspects of their child’s care; both would be involved in the child’s everyday rearing responsibilities; and both would share the authority for major decisions relating to the child’s education, school election, health care, and the control over his social circle. At the same time, the parents would be required to work together in order to negotiate and reduce parental conflict. (2) Joint custody would satisfy the child’s best interests and, as an indirect consequence, would deter, in the judge’s view, constant parental fighting regarding child-related decision-making. (3) It is necessary to consider the child’s preference in custody determinations, and in this case the child had expressed his preference to share more time with his father. (4) The judge noted that article 9.3 of the U.N. Convention on the Rights of the Child recognizes a child’s right, in the event of parental separation, to “maintain personal relations and direct contact with both parents on a regular basis, …” thus reaffirming the co-parenting paradigm.

In a very similar case involving intensely hostile parents with a high conflict level between them, that court mandated application of the joint custody model “because it will help improve parental communication.” The court further observed in this opinion that “the obstacles in dealing with such a solution – keeping two households, two sets of clothes, etc- are not significant because such a situation does not differ in a substantial way from an unrestricted visitation regime.”50 In another case, a different court awarded temporary joint custody, while the parents underwent therapy, at the court’s suggestion, as a preliminary step to a judicial custody definition.51

Some rulings emphasize the point that joint custody results not only in a child sharing time with each of the parents, but also provides a means to an equitable distribution of responsibilities. An award of joint custody encourages parents to pursue a unified approach in connection with the child’s education, enhances the personal availability of each parent to attend to everyday activities, and fosters the capacity for negotiation in order to provide children with a coherent and trustworthy environment.52

5. The Child’s Preferences

Before Argentina ratified the U.N. Convention on the Rights of the Child in 1991 and later incorporated the Convention into the text of its 1994 Constitution, judges could decide whether or not to listen to a child’s opinion in a custody dispute. Such an approach is no longer an option. Article 12 of the CRC, which is now a mandatory provision as part of the Argentine Constitution,53 provides as follows:

1.States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

A recent ruling of the Supreme Court of the Province of Buenos Aires Province rendered a judgment on custody and visitation rights void because the lower courts had failed to listen to the children’s opinion.54 Nevertheless, in judicial practice we can find numerous judges who do not abide by the Constitution and disregard the right of children to be heard in chambers, doing so only when one of the parties so requests it. Frequently, children and adolescents are interviewed by social workers or mental health professionals.

When the Convention refers to the maturity of the child, questions arise which as yet do not have satisfactory answers. Courts are faced with the dilemma of deciding when, or whether, it is appropriate to allow the children to have a real say in what will happen to them, and when not to respond to their wishes. The level of maturity implies that the particular minor has achieved sufficient understanding and intellectual capacity to fully comprehend the specific matter, and has the capacity to define his/her needs and wishes and foresee possible consequences.

Our legal system does not establish a specific age, so legal scholars have affirmed that when a dispute arises, the court will be called upon to decide the question of whether the child has achieved sufficient understanding and intelligence to be heard.55 Nevertheless, the Civil Code provides that the acts performed by a young person who has reached the age of fourteen are presumed to be done with discernment. Consequently, a minor above that age is able to express his/her own view, and only under very serious circumstances may the court fail to listen to or override that child’s opinion.56

Children must actually be “seen” in custody and visitation proceedings, and their opinions must be considered essential when determining their best interests. Listening to children enables the court to know more about their needs, difficulties, and wishes, their personality, and the kind of relationship they maintain with each parent. At the same time, the court must ensure that the child’s rights to due process are preserved. First, the child must receive appropriate information from court officers regarding the significance of his or her expressed opinion. Second, children should be interviewed in private, rather than in the presence of their parents and respective counselors, so that the child’s privacy is preserved in an informal hearing, avoiding complex prodedures and formalities that might intimidate the child.57 Third, mental health professionals or other specialists should be appointed who can assess and interpret the child’s needs and words. That is why judges often hear children in the presence of mental health professionals and social workers. It is absolutely essential to interpret the child’s speech appropriately and to identify the child’s own wishes and needs.

Legal scholars and court opinions have recognized that the right of the child to express his or her views is personal, so when possible, the child should be heard directly and representatives should be avoided.58 Children should be provided with a suitable environment in order to express their own views about their feelings and relationship with each of their parents, as well as their preferences. The Supreme Court of the Province of Buenos Aires has rejected the idea that the mere intervention of the judicial officer who represents children’s rights in judicial proceeedings is an adequate substitute for a child’s opinion.59

Nevertheless, the child should not play the role of an arbitrator, nor should the child’s wishes be unconditionally accepted when they do not serve the child’s best interests.60 The child’s views must be assessed together with the other factors the court must consider in resolving custody and visitation issues.61

In several cases courts have held that even though there is no mandatory requirement for the judge to follow the child’s preference, nevertheless the child’s preference does create a presumption in custody determinations because such rulings affect the child directly.62 In particular, the views of a teenager regarding the manner in which visitation should be exercised with a non-custodial parent should be given special consideration.63

When children have opposed maintaining any contact with a non residential parent, judges have avoided imposing visitation and have chosen to seek intervention by experts directed at modifying dysfunctional relationships.


IV. High Conflict Custody and Contact Cases and Mandatory Therapy Programs

The judicial system has become more pro-active in order to guarantee children’s rights after parental separation and divorce by ordering therapeutic services to assist with chronic, recurring custody and visitation disputes and to help parents abide by court orders. Several courts have ordered therapeutic treatment, together with extensive involvement by family court social workers, who provide support to the children, organize either observed or supervised contact sessions, and prepare periodic reports. All of these measures are take in an effort to overcome conflict responsibly and to ease the stress on children.64

In some cases, court orders awarding residential custody are explicitly subject to the caveat that residential arrangements may be modified and reversed if the custodial parent fails to comply with the court’s orders regarding contact with the other parent.65 In one case, a high level of conflict resulted in the suspension of the contact regime, and agreed ongoing therapeutic treatment with regular reports to the court.66 Another decision mandated temporary joint custody, with simultaneous mandatory parental therapy, pending a judicial decision on custody assessing parental fitness. The court ordered mental health professionals to report on their custody or contact recommendations, and warned the parties that not abiding by the judgement would result in the imposition of fines.67

Imposed therapy implies a restriction upon individual autonomy in family matters, but it is justified on the basis of children’s welfare. It has been affirmed [Ida, rather than use passive voice here, it would be useful to identify the source of the quote. I know you have the source in the footnote, but I am afraid that my translation of it would not be accurate. Would it be accurate to say: One court that considered these measures has recognized...] that the State “must guarantee children’s psycho-social health and reduce conflict so as to enable the family to manage its own affairs.”68 Of course, adequate parental consent must be obtained prior to the beginning of treatment, so that individual liberties are not abridged. The court system merely offers these alternatives in order to handle family matters and reduce the impact of inappropriate conflict within the family.

V. Mediation and Conciliation in Custody and Visitation Conflicts

In Argentina, family law relationships such as marriage, divorce, and child custody issues are regulated by federal law that is in effect nationwide. [Was my addition of the word “federal” accurate? If not, I will change it back to the original wording.] The individual provinces, however, regulate procedural matters. In 1996, the national civil court [Should National Civil Court begin with capital letters? Is it the name of the court? If not, should we use the real name, and then describe it in a clause, such as “the nation’s highest appellate court”? The footnote is just to a Law number, so I can’t figure it out from the footnote.] held that mediation must be a mandatory component of the process for resolving disputes in divorce proceedings, 69 [Ida, is it all civil and commercial cases, or just divorce proceedings?] as the adversarial process had frequently been described as an inappropriate venue for addressing these types of family conflicts. Since then, custody and visitation issues must go through mandatory mediation. Through that process, parents work together with the aid of the mediator and each party’s attorney to reach a negotiated settlement. If mediation fails, they can litigate. But even then, procedural law provides the court with authority to order conciliation hearings at the court’s discretion. [Do I have this accurately portryed?]

Family courts in the province of Buenos Aires follow a special process.70 One of its outstanding characteristics is the introduction of the Family Counselor,71who works on agreements with the aid of the Experts’ Team, composed of mental health professionals and social workers, in what is known as the Previous-Conciliation Stage.72[I think the term “Previous” might not be the best translation, even though I appreciate that it might be the literal translation. In English, that would mean something like “Past-Conciliation.” I am not sure what to substitute. Is “past” the idea you meant to convey, or are there any other possibilities, such as “early” or “pretrial”? The Family Counselor investigates the family members’ interests and leads the process in order to achieve sustainable agreements. Only when conciliation fails, does the lawsuit begin. In the Buenos Aires province, custody matters are resolved through parental agreements in approximately 70% of the cases.73 Other provinces have also introduced alternative dispute resolution methods – mediation, negotiation, and conciliation - in their local procedural provisions.

V. Relocation Cases

Relocation issues are difficult matters for the courts. There is no clear judicial standard to resolve a dispute when a custodial parent wishes to relocate with a child, and decisions vary and depend on the circumstances of each case. Still, by examining the cases we can identify certain guidelines. Judges generally grant requests by custodial parents for relocation within the country, but they are more reluctant to allow a custodial parent to move a child abroad.

Courts have authorized a proposed relocation when they find it to be in the best interests of the child. In some cases courts have emphasized the “status quo” preference, weighing the potential effect of relocation vis--vis the impact of a change of custody, given the period of time the children had lived together with the mother. In one case, the appellate judges rejected a change in custody requested by the father, and allowed the custodial mother to move with the children to another province to advance her career and salary prospects. The appellate court noted: “…over and above parental conflict, it is the stability of the child, as required for a healthy development, that should be taken into account.” As their ruling indicates, the judges clearly followed the status quo preference in that decision.74 Ida, you had used the word “preference” when you described it in Section III, so I kept with the same word. If I am in error, let me know.]

Argentine courts have also occasionally permitted custodial parents to move children to foreign nations. One appellate court allowed a mother to move to the Republic of Uruguay so that she could take up a diplomatic post as Consul General. The court observed that the father’s opposition placed the mother in a position of having to choose between getting her job and loosing the children’s custody, or loosing her job and staying with her children. Both options proved problematic. In this case, the judges allowed the younger children to move, but permitted the older children to stay with their father in Argentina. In deciding to split the siblings, the court assessed the social environment in which the older girls had already formed strong ties, and their wish to stay with their father. Besides, the judges noted, the proximity of both countries, Argentina and Uruguay, would facilitate fluent communication among family members.75On another occasion, the judges allowed the relocation of a child to a foreign country for a period of one year, ordering free contact –direct or indirect- with the other parent.76 [I am not sure what you mean by “free contact.” Do you mean unlimited, or do you mean that the custodial parent was required to pay the transportation costs for visitation?]

Thus, judges appear to authorize the relocation of a custodial parent and child to another province, and even to a foreign country, for professional and job reasons or when the relocation is not detrimental to the child’s best interests.77 In many cases, however, judges have denied authorization to custodial parents to move permanently to a foreign nation. In one case, the court did not allow the relocation of girls with their custodial mother, disregarding the opinions of the daughters who expressed their wish to stay with their mother in Italy, together with her new husband. The court held that the mother’s relocation to a distant foreign state was a material change of circumstances that would have an adverse effect on the children, due to the difficulties the father would endure to maintain fluent contact with his daughters. The court focused in particular on the father’s economic situation. Even though the girls had already moved to Italy, the judge ruled that such relocation violated the father’s rights.78 In another recent case, an appellate court reversed the trial court’s decision to permit the mother of a five-year-old to relocate to Mexico to reside with her second co-habitee.79 The appellate court obviously disagreed with the importance the trial court had placed on maintaining the status quo and the relative weight to be given to the child’s rights and the boy’s social environment and relatives in Argentina, including grandparents, uncles, and cousins. [I am not sure if I captured what you were trying to say. Your sentence spoke of the trial court, but you were describing the appellate court’s opinion.] Courts have similarly denied a custodial father permission to relocate with the children.[This was the case you discussed in the first sentence of your original paragraph. It needs a footnote to a citation for the case.]


VII. Custody and Visitation to Third Parties

According to our civil law, children have the right to communicate with those relatives from whom they can require support, and conversely, those relatives who can require support from them are entitled to contact authorizations (visitation orders).80 Nevertheless, the “best interests of the child” standard has been used to apply this provision to broadly extend visitation rights to other people who would not technically be included within its coverage. In all cases, parents can oppose contact that may be detrimental to the child’s physical or mental health. Courts resolve conflicts regarding contact and can issue visitation orders.81

Several rulings have emphasized the importance of grandparents in children’s lives. Often, upon divorce or separation, one of the parents denies the relatives of the other parent contact with the children due to resentment or other harsh feelings. Judges have repeatedly held that custodial parents are abusive when they restrict or deny visitation that serves the best interests of the child.82 Judges frequently comment on the value of contact with those who have developed emotional ties with the children, unless the visitation would endanger the children’s mental or physical health.83


VIII. Conclusion: Critical Evaluation of the Law

We believe the current statutory system, which only provides for sole custody upon separation or divorce and consequently awards parental authority to the custodial parent, does not serve the best interests of children. One of the parents is basically deprived of exercising his or her role as a parent. Usually the non-custodial parent seldom sees the children, and does not participate in child care or child-rearing. At the same time, fathers do not comply with their duty of child support. Mothers experience “role overload," which detrimentally affects the children.

This model frustrates the “shared responsibility” goal proclaimed by article 18 of the UN Convention on the Rights of the Child,84 which assures that States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for contributing to the upbringing and development of the child. Under our current system, the shared exercise of parental responsibility can generally only be achieved through parental agreements for joint custody.

Our legal system will guarantee children the opportunity to experience active co-parenting only when legislative reform provides courts with the statutory authority to award joint custody, as an alternative to sole custody, following parental separation or divorce. Joint custody has an important symbolic value, suggesting that neither parent is excluded in the process of joint decision-making, and ensures that children will not be deprived of the continuous involvement of both parents. One court that accepted a parental agreement for joint custody emphasized its importance in this way: “[T]o keep the shared exercise of patria potestad means to enhance parental awareness that both parents are responsible for their children’s care and education, even though they no longer live together. Besides, it makes a reality of the law to turn not one but the two parents into decision-makers – either in an implicit or express way - in all life and estate matters of their children.”85

A similar sentiment was expressed by two separated parents in an Argentine newspaper article:
We both decided to have a child, we were both in labor, we both changed numerous diapers, [and we] took him to the doctor when he was ill. We aren’t together any more because we’ve separated, but we both want to be side by side with our son.86


1 Nov. 20, 1989, 1577 U.N.T.S. 3.
2 A translation of the Federal Constitution of Argentina can be found on the website of the Ministerio Justicia y Derechos Humanos at http://www.biblioteca.jus.gov.ar/Argentina-Constitution.pdf. [Ida, is this the most current version? It is the only English translation I could find on the web from an official source, but you may know of a more current version in English on another site that would be better.]
3 Civil Code, Section 240. [If this is not the complete cite, if you could provide it, that would be helpful. I am assuming there is something more, as it looks like some of your other footnotes in Spanish might be citing to the Civil Code, and they seem longer. If I am mistaken about this, then there is no need for a footnote here and I will delete it.]
4 See CRC, supra note 1, at article 18, which provides in part: “States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents . . . have primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”
5 Civil Code Section 264, 5th paragraph. [Ida, I am going to be moving several of your references to the Civil Code to footnotes. If they need something else to be complete citations, please tell me what I should add. If they are complete citations as I have it here, then I can just leave them as is.]
6 This concept is similar to “legal custody” in American law.
7 The exercise of patria potestad is similar to the concept of physical custody in American law.
8 The common term, “tenencia,” has been widely criticized by legal scholars because it puts children in the category of objects. Consequently, it has been suggested that it should be replaced, within judicial and legal vocabulary, by another expression such as “personal care,” “living together with children,” or “habitual residence.”
9 Civil Code, Section 264, 2nd paragraph. The term “education,” as it is used in this context, should be broadly interpreted to mean “child upbringing.” See Bossert Gustavo A. & Zannoni Eduardo A., “Régimen Legal de Filiación y Patria Potestad,” Astrea, Buenos Aires, 1985, p.281.
10 Civil Code, Section 264 quarter. [Did you mean Section here or article? What does “quarter” refer to?]
11 Civil Code, Section 206.
12 Many of our legal authors question our legal system and these old gender based rules, citing articles 5(b) and 16 (d) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratified by Argentina on August 14, 2985, and article 18.1 of the CRC, supra note 1, ratified by Argentina on January 3, 1991.
13 See infra, Section II.B.4.
14 See Azpiri Jorge, “El Orden Público y la Autonomía de la Voluntad en la Patria Potestad;” Revista Interdisciplinaria de Doctrina y Jurisprudencia, Abeledo-Perrot, Buenos Aires, N̊15, p.95; Zannoni, Eduardo, “Derecho de Familia” T.1, p.69; Mizrahi , Mauricio, “Familia, Matrimonio y Divorcio”, Astrea, Buenos Aires, 1998, p.424/5; Diaz de Guijarro, Enrique, “La Patria Potestad Compartida. Principios y Consecuencias”, JA, 29/06/1983; Scherman, Ida Ariana, “El Impacto de la Reforma Constitucional sobre el Derecho de Familia”, Colegio Público de Abogados, Buenos Aires, 2001, Revista de Doctrina N̊4,p.21; Grosman Cecilia P., “El Proceso de Divorcio, Derecho y Realidad”, Ed. Abaco de Rodolfo Depalma, 1985, p.143.
15 Civil Code, Section 264, 5th paragraph.
16 See CRC, article 3, which provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” This standard has been incorporated into the Argentine Constitution, by Section 75, subsection 22. See Superior Tribunal Tierra del Fuego, 08/10/97, La Ley, 1998-F,571; Superior Tribunal San Juan, 25/11/96, La Ley. 1997-C-659.
17 Civil Code, Section 236.
18 CNCiv.Sala J, 28/11/91, La Ley, 1992-E, p.374.
19 Civil Code, Sections 206 and 236.
20 Civil Code, Section 59, and Law 24.946, Section 54. [Ida, I am not sure if this last cite is complete. As with the other notes, if you need to add something to the “Law” cite (or the other one) to make it complete, please do so. It is fine if it is in Spanish, as many of your other citations are. Also, is your Civil Code available on a free website, in either Spanish or English? If so, it would be great if you could add the cite. Many American readers of your article will speak Spanish, so a citation to even a website version in Spanish would be useful to them. ]
21 See Section II.B.2., supra.
22 Civil Code, Sections 206, 264, paragraph 2.
23 Civil Code, Section 206.
24 See note 16, supra.
25 1994 Constitution of Argentina, Section 75, sub-section 22. See Superior Tribunal Tierra del Fuego, 08/10/97, La Ley, 1998-F,571; Superior Tribunal San Juan, 25/11/96, La Ley. 1997-C-659. See note 16, supra.
26 Grosman Cecilia P., El interés superior del nio, en “Los derechos del nio en la familia. Discurso y realidad”, Editorial Universidad, Bs.As (2000).
27 Among others, see CNC, Sala K, 10/5/94; CNCiv.Sala C, 14/9/95; CApel.CCMoron, Sala II, 14/2/1995, El Derecho, 28/11/95; CNCiv.Sala L, 30/11/99
28 CRC, supra note 1, article 9.3.
29 CNCiv.Sala L, 12/9/91, Revista La Ley, T.1991-E-503, expert reports Asesor de Menores de Cámara Nacional en lo Civil, Sala B, 22/11/89, LL, 1990-E-1701
30 CNCiv., Sala B, 20/6/89 [Ida, is this a citation to a case? If so, would it be possible to include here and elsewhere the name of the case?]
31 C.S.J.N., 13/5/88, JA, T. 1988-IV, p.529
32 S.C.J. Buenos Aires, 16/8/1994, El Derecho, 9/11/1994.
33 SCJ Buenos Aires, 16/8/94, ED, 9/11/94
34 C.Civ. y Com. San Isidro, Sala 1̊, 27/8/1999, Jurisprudencia Argentina, 23/2/2000.
35 Suprema Corte Provincia Buenos Aires, 28/03/2001
36 At least 46 states in the United States of America evaluate domestic violence within custody criteria, see “A Review of the Year in Family Law: A Search for Definitions and Policy”, Linda D. Elrod and Robert Sprector, in Family Law Quarterly, Vol.31, N̊4, Winter 1998, American Bar Association, Section of Family Law, pages 631/667.
37 CNCiv.Sala H, 2/3/95, El Derecho, 15/11/95
38 The judges explained such ruling on the grounds that , as is well known that members of this church reject military activity. They feared the mother’s teachings could injure the paternal image due to the fact that the parent was an army officer, see CNCiv., Sala E, 30/6/81, LL, 1981-C
39 CSJN, 3/10/1983, Causa 373-70
40 Juzgado de Familia, 4̊Nominación, Córdoba, 6/8/2003, La Ley, T2004-B, p.429
41 See supra, note 16.
42 CCiv.y Comercial San Isidro, Sala 1̊, agosto 2002, La Ley, T.2003-F, p.77
43 See supra, Part II.B.4,
44 CNCiv., Sala E, 9/12/1983, La Ley, T.1984-D, p.679; CNCiv. Sala D, 31/8/82, La Ley, T. 1983-C-255
45 See: Chechile , Ana María, “Patria potestad y tenencia compartida luego de la separación de los padres”, Jurisprudencia Argentina, 2002-III, p.1308; Díaz de Guijarro, Enrique, “El interés familiar y el interés social en las cuestiones sobre tenencia compartida de los hijos, en hipótesis de nulidad matrimonial y de divorcio”, Jurisprudencia Argentina, 1989-I-979; Gregorini Clusellas, Eduardo, L., “El interés de los hijos como valor superior en los acuerdos sobre tenencia y patria potestad”, La Ley, 1997-E-425; Grosman Cecilia P. “El derecho infraconstitucional y los derechos del nio”Libro de Ponencias en Congreso Internacional, “La persona y el derecho en el fin del siglo”, Universidad Nacional del Litorial, Santa Fé, 1996; Iigo, Delia, “Una acertada decisión sobre patria potestad compartida”, La Ley, 1999-D-477; Yarke, María del Carmen, “Un derecho del menor: la tenencia compartida”, La Ley, 1993-A, 1038; Alles Monasterio, Ana M. “Patria Potestad. El superior interés del nio, la tenencia compartida”, El Derecho, 185-103; Polakiewicz, “El derecho de los hijos a una plena relación con ambos padres”. P.192 en Grosman, ob.cit., “Los derechos del nio en la familia”
46 CNCiv.Sala F, 23/10/87, La Ley, 1989-A-95; CNCiv.Sala D, 21/11/1995, La Ley, 1996-D, 678; CNCiv.Sala J, 24/11/98, LL, 1999-D-479; CNCiv.Sala F, 14/2/2002, nota a falloBíscaro, Beatriz, Jurisprudencia Argentina , 10/4/2002; CNCiv.Sala H, 28/4/2003, Revista Derecho de Familia, Revista Interdisciplinaria de Doctrina, y Jurisprudencia, nota Famá, Victoria, B̊25, p.187. And, Family Courts approved private agreements, see Judge Repetto, ruling on 4/11/1992, and 24/06/1993; and Juzgado Civil y Comercial N̊2, Gualeguaychú, 6/7/92
47 MACCOBY ELEANOR E., MNOOKIN ROBERT H. “DIVIDING THE CHILD, SOCIAL &LEGAL DILEMMAS OF CUSTODY,” Harvard University Press, Cambridge, Massachusetts, 1992, p.8
48 Cam.Civil y Comercial , Azul, Sala I, 8/5/2003
49 Supremo Tribunal Tierra del Fuego, 8 de octubre de 1997, LL, 1998-F-568; CNCiv., Sala F, 14/2/2002 with approving note by Bíscaro Beatriz, LexisNexis, Jurisprudencia Argentina, 10 de abril, 2002.
50 Supremo Tribunal Tierra del Fuego, La Ley, 1998-F, 568; CNCiv., Sala C, 11/9/92, “I. de V.”, Jurisprudencia Argentina , 1993-II-418
51 Tribunal de Familia N̊1, La Plata, 23/12/2003.
52 CNCiv., Sala H, 11/2/1998, El Derecho T.179, p.292; CNCiv., Sala F, 14/2/2002, El Derecho, T.200, p.279
53 The CRC was incorporated into the Argentine Constitution, by Section 75, subsection 22.
54 Suprema Corte de la Provincia de Buenos Aires, 2/5/2003, see La Ley, 2003-A, 425
55 Grosman Cecilia P. “La opinión del hijo en las decisiones sobre tenencia”, see El derecho, 107-1011
56 Guahnon Silvia V., “El debido proceso y la concreción del derecho del menor a ser oído en un proceso de familia”, Jurisprudencia Argentina, 14/01/2004
57 Kemelmajer de Carlucci, Aída, “El derecho constitucional del menor a ser oído”, Revista de Derecho Privado y Comunitario, Rubinzal Culzoni, Buenos Aires, 1994, N̊7
58 Id.
59 Suprema Corte de la Provincia de Buenos Aires, 2/5/2003, La Ley, 2003-A-425
60 Suprema Corte de la Provincia de Buenos Aires, 2/5/2003, La Ley, 2003-A-425
61 CNCiv.Sala H, 20/10/97, La Ley, 1998-D, p.261 (falta completar)
62 CCiv. y Com., Sala 1̊, 27/8/89, Jurisprudencia Argentina, 23/2/2000
63 CNApel.en los Criminal y Correccional, Sala V, 5/3/2004, LL, 22/6/2004
64 Superior Tribunal Tierra del Fuego, cit. La Ley, 1998-F, 568
65 CNCiv.,Sala E, 31/5/88, La Ley, 1990-A-70
66CNCiv.Sala K, 21/5/2002
67 Tribunal de Familia N̊ 1,La Plata, 23/12/2003, Registro N̊ 3143/03; CNCiv. Sala C,11/9/92, JA, 1993-II- 418
68 Dictamen del Asesor de Menores de Cámara Nacional en lo Civil, fallo CNCiv.,Sala E, 31/5/88
69 Ley 24573
70 Ley Provincial N̊7861
71 See Código Procesal Civil y Comercial de la Provincia de Buenos Aires, Título III, “De Los Consejeros De Familia”, arts. 832/837
72 See Código Procesal Civil y Comercial de la Provincia de Buenos Aires, Título II, “De La Etapa Previa”, arts. 828/831
73 This statistic is based on data produced by a Family Counselor of a Family Court in the largest and most populated district in Buenos Aires province. See Ida Ariana Scherman, “Base de Datos de la Consejera de Familia, Tribunal de Familia N̊2, Lomas de Zamora,” [Ida, could you add th citation to the publication in which this article or data appears? If it is a book, then just add the date of publication, and tell me it is a book.
74 Cam.1̊Civ.y Com. La Plata, Sala II, 3/6/2003, La Ley, Buenos Aires, 2003, p.885
75 Corte Suprema Nación, 13/5/88, see, Jurisprudencia Argentina, 1988-IV, p.533
76 CNCiv.Sala J, 7/7/94
77 See, CNCiv., Sala F, 14/9/89, Publisher Jurisprudencia Argentina, 1990-I-172, the court allowed the relocation to Israel due to the scholarships awarded to minor children to study in that country. The father’s attitude –he had had no contact for the last thirteen years- and the benefit to the children were the factors evaluated by the trial court.
78Juzgado Civil y Comercial Azul, 26/8/92, see Doctrina Judicial, 1993-I-383
79 Cam.Apelaciones Concepción del Uruguay, Sala Civ.y Com. 8/9/2003, see Doctrina Judicial, 8/9/2004
80 Civil Code, article 376bis.
81 See Di Lella, Pedro, “La legitimación en los denominados regímenes de visitas”, Jurisprudencia Argentina, 2/7/2003
82 CNCiv.Sala E, 7/8/1987, La Ley, 1988-A, 391; CCiv.Com.Trab. y vFamilia Cruz del Eje, 16/6/2000, La Ley, Córdoba, 2000, 1349.
83 CCiv.Com., Morón, Sala II, 19/6/1997, La Ley, Buenos Aires, 1998, 401
84 See supra note 4.
85 See CNCiv, Sala F, 23/10/87, LL, 1989-A-95; Barbero Omar, “Padres Que Dejan de Convivir pero Acuerdan Seguir Coejerciendo la Patria Potestad: Lesión al Orden Público”, LL, 1989_A, p.94; CNCiv, Sala D, 21/11/95, LL, 1996-D, p.678; M.J., “Patria Potestad del Progenitor Excluído de la Guarda del Hijo”, La Ley, 1990-E, p.166.
86 Clarín, 14/4/1996