Interdiction and Disqualification under Venezuelan Civil Law

Posted on Aug 2, 2024 in Law & Jurisprudence

Interdiction and Disqualification in Venezuelan Civil Law

Ban

It is the state of a person who is declared incapable of acts of civil life or suffers from a lack of serious intellectual capacity or by virtue of a criminal conviction.

According to the Venezuelan Civil Code, the person under interdiction (the name given to the person under interdiction) is subjected to a full bargaining failure, depriving them of the general and uniform administration and management of their property, even though they may have lucid intervals. (Art.393 CCV)

Who can be subject to interdiction?

  1. Senior (Art.393 CCV)
  2. Emancipated minors (Art.393 CCV)
  3. Unemancipated minors, provided they are in the final year of their younger age (CCV Art.394). In this case, the ban takes effect only when the person reaches the age of majority; its usefulness is to ensure continued protection of the subject to pass automatically to custody, child custody guardianship of prohibitions.

Why does the ban operate only in adults and emancipated minors?

Because the unemancipated minor is under parental authority.

Who can ask for the ban?

(Art. 395 CCV)

  1. The Spouse.
  2. Any relative of the incapacitated person; the law sets no limits to the degree of kinship.
  3. The Trustee City Attorney, which is justified by the collective interest that exists in the matter.
  4. Any person who has an interest, such as a partner.
  5. The court may proceed ex officio (Judicial Ban).

You cannot declare the ban if the person being questioned is suspected of lacking a serious intellectual defect, and having heard from four of their immediate family or, failing that, family friends. (Art. 396 CCV)

Who can carry out the annulment of acts by the person in question?

(Section 404 CVC)

  1. The Guardian
  2. The rehabilitated
  3. Their heirs or beneficiaries

Class of Ban

Judicial Ban

It arises from the existence of a serious intellectual defect in a person. It is a measure of protection for those people that do not have the intelligence to provide value to their actions and whose heritage and name must be safeguarded. Its name derives from the fact that the intervention of the judge is required to pronounce it, because of a declarative sentence through which individuals are deprived of the administration of their property.

What are the reasons why the Interdiction is trialed?

  1. That the person has an obvious mental disorder that severely alters their intellect (intelligence, will, and conscience).
  2. That the defect is common even when there are lucid intervals in the individual.
  3. That the individual is of age or an emancipated minor.

Effects of Gender Ban

Are established from the day the decree of interdiction. (Art. 403 CCV)

  1. The person in question is deprived of the government of their person, is affected by a disability that is full, comprehensive, and uniform, and therefore is subject to guardianship. (Art. 397 CCV)
  2. The guardian must take care that the Interdict gain and regain their capacity, for this purpose should be used mainly products of the property. (Art 401 CCV)
  3. The court, with knowledge of the case, will decide whether to be unable to care at home or elsewhere, but will not intervene if the guardian is the father or the person thrives on their own.

Restraining Guardianship Intellectual Default

As in ordinary guardianship of minors or the spouse or parents need to: (Art. 400 CCV)

  1. Capacity to be appointed as guardian
  2. They are not obliged to provide any security, nor to the provision of annual statements (bond, accountability).
  • The protection of the person in question shall be exercised by the spouse not legally separated from property. (Art. 398 CCV)
  • Guardianship ceases because of the tutor, so he called on cessation.

The alienated two orders of problems arise that the judicial ban help resolve:

  1. Individual’s insane: they need to be adequate protection of person and property, and
  2. Social: You must look after the interests of society.

The ban is set to benefit directly the person in question, as this may not exercise any of their rights.

The Revocation of the Ban

May be requested only by those who promoted the trial, or the person in question if it is shown that the cessation of the reason that led to it. (Art. 407 CCV)

For the purposes of the revocation shall be the competent judge who heard the case at first instance, this will open a joint probation for such period as determined by the same judge and his decision will be consulted with the appellate court. (Art. 739. CPC)

Legal Ban

Opera as a product of a prison sentence, the legal ban is an additional penalty is needed to jail can be imposed separately from this. Its name derives from that imposed the sentence without any other requirement, the defendant is called into question under the law. Determines the inability of social defense.

In these cases, it influences the social interest of the execution of the sentence, but after questioning the accused declared by this interest, it is necessary to serve the interests of the incapacitated individual, as regards the management of their heritage.

The legal prohibition is governed by the rules of the judicial ban, as applied.

Effects it Generates

  1. It is not at the control, but the prison system in the place of imprisonment that the sentencing judge.
  2. The convict is able to perform personal acts only those who could not be performed by a representative (give a will, recognition of a child, marriage).
  3. You lose the right to dispose of their property, or the administration thereof.
  4. It is deprived of parental authority exercised over their unemancipated minor children

The guardianship ends with the full freedom of the person, either by the completion of the sentence or a pardon from Fig.

Disqualification

Deprivation is limited bargaining capacity because of an intellectual defect is not severe enough to cause the interdiction or wastefulness, is a bargaining situation between capacity and full capacity.

Disabling Effects it Generates

  1. The person is deprived of free government of themselves, but is subject to guardianship of the disabled (scheme of assistance).
  2. Their capacity is limited in negotiation; they should be assisted by the curator, and can perform all those acts which are allowed.
  3. On the invalidity of those events held by the unskilled, if conducted without the assistance of the curator that remain tainted for invalidity which can be invoked only by: (Art. 411 CCV)
  1. The Curator
  2. The disabled
  3. Your heirs or beneficiaries
  4. You cannot make donations, with the exception of donations by reason of marriage (requires the assistance of the curator). (Article 147 CCV)
  5. The incapable person could accept donations but if you are loading or conditions requiring the consent of the guardian.

Disabling Recall

Revoked when the circumstances which motivated it. (Art. 412 CCV)

Types of Disability

Inability Judiciary (art. 409 CCV)

It is pronounced by the court ruling that declared incompetent by the subject by presenting an intellectual defect is not severe enough to cause the ban.

The incapable affected by these developments cannot fully realize that rights conferred the greatest.

What are the causes of judicial disability?

(Art. 409 CCV)

  • The weakness of understanding (the state that is not severe enough to result in the ban).
  • The bounty (means spending his own fortune in unjustified and disproportionate costs).

What are the procedures for the trial court disbarment?

Is equal to the trial court ban, but at the end of the summary is not decreed the provisional prohibition, that the lesser severity of the defect can expect the final decision to rule without prior grant interim relief. The sentence should consult with the Superior. (Art. 740 CPC)

Disable Legal

It affects the persons determined by the law without requiring any judicial pronouncement.

Who are unfit for determination of the law?

(Art. 737 CPC)

  1. Deaf
  2. The blind from birth
  3. Those who have blinded in childhood (0 to 12 years), from the time they reach the wholesaler. (This is unless the court declared it to be able, to such person to run their businesses.)

The presumption of the legislature for the purposes of this rule is that such physical defects usually involve the subject in a measure requiring a limitation on their ability to management of its property interests.

Venezuelan Civil Code

Its Historical Evolution

The first civil code enters into force when the presidency of General Paez in the year 1861, this Code is an inspiration in the Code of Andres Bello.

The second is the Civil Code of 1867, this was a copy of the famous Spanish Civil Code Garcia Gayen.

The third was the Civil Code of 1896, this brings a number of new provisions on the Law of Family, facilitating marriage.

Follow the Civil Code of 1904 to early this century, they also have some reforms and changes that were considered retarded, but that represented some progress such as: first enshrined the institution of divorce on family law in Venezuela.

The fifth was the Civil Code in 1916, has a number of changes in character as to inconvenience the inquisition of illegitimate paternity.

The Civil Code of 1922 removed some barriers to the inquisition of illegitimate paternity, establishing some progress and some reforms in leasing and sale.

The Civil Code of 1942 which is the part that governs us today, introduced a number of desirable reforms, established the community that concubinage is a rule of law which allows a woman who had lived in concubinage prolonged economic rights apply your partner. Some reforms were made concerning the obligations, emphasized the protection of the State call for abandoned children. The Civil Code of 1942 lasted 40 years in force and was repealed in part by the Civil Code that governs us today is that of 1982, this is the eighth Venezuelan Civil Code. This code set various changes in the Name, Guardianship, Heritage, parental authority, ie the reform of the 1942 Civil Code in 1982 has operated a number of positive aspects which relate particularly to the field of family.

Structure of the Venezuelan Civil Code Effective

The current Civil Code is the Venezuelan civil code enacted on July 13, 1942, renewed on 26 July 1982, the provisions of this code are organic sense.

The material structure of the Civil Code: A preliminary title that contains basic and fundamental provisions which naturally starts with Article 4 and concludes with Article 14.

Since Article 15 starts by Title I of Book I of the Civil Code. Refers to the organization of Venezuelan society in terms of people.

From Article 525 begins the second book is called the assets of the property and its amendments, calls the doctrine of the property and things, it starts in Article 525 and ending in 795.

After Article 796 in the third book begins, the owner of the materials is known to acquire and convey property and other rights, there are incorporated the provisions relating to major royal law Property law fundamentally. This is the final book and ends in Article 1.987.

After Article 1988 to Article 1993 found the transitional provisions were provided by the Venezuelan legislature. Then there are two final provisions of Articles 1994 and 1945, the final provisions refers to the opportunity that begins to follow the current code.

What is the ban?

It is the judicial act by which deprives a disabled person (insane) to act for herself in legal life. The injunction cannot bind itself, without the authorization of another person (healer).

What are the effects the ban?

Declared by the judge and entered in the Register of interdiction of Real Estate for all acts that make the injunction is void ab initio. The acts performed or concluded before the declaration of interdiction are valid, unless it proves that the place was then executed or disabled.

Who can declare ban?

  1. At or lademente (completely unable).
  2. At or adisipador that repeated squandering facts revealed his total lack of prudence in the management of its affairs or business. However, the cooler always retain their freedom and have freely available a sum of money for personal expenses, proportionate to its powers, noted by the judge.

How can exercise the right to request the prohibition of an incapacitated?

Through a lawsuit filed before the civil court within whose jurisdiction is located the address of the disabled.

What are essential steps in the process of interdiction?

  1. Medical report issued by the Medical Legal Institute
  2. Report of the Ombudsman/a Public officer/a judicial officer who believes on the merits of the ban and on the person of the curator
  3. Inspection of the alleged injunction by Judge
  4. Hearing with the judge where they should appear the relatives of the defendant/a.

What is the final decision?

Final Ban is declared the defendant, who is from now deprived of the free administration of their property, ordering the registration of the decree of interdiction in the Register of Real Estate and ordering notify notices, and designates the person curator of the injunction.

Civil Law, Criminal Procedure

Submitted by jozcariz

Ability, disability, disqualification and emancipation in Argentina

Status of Persons

CONCEPT: The state as an attribute of the person, has the current scope to determine their position within the family (son, father, mother, spouse, brother, etc.), and within society (citizen, resident, single, married, etc.), a site which carries a series of rules that assign an individual empowerment and disabilities, rights, and duties. These capabilities can be recognized or denied.

Capacity

Concept: Attitude on a person to acquire rights and incur obligations.

  • Capacity to Legal or right: the degree of fitness a person has to have rights and obligations.
  • Capacity to act or fact: it is the person who has the ability to act for itself in civilian life, that is, to exercise and enforce, personally and directly, their respective rights and obligations.

Article 52: Persons of visible existence are able to acquire rights and contract obligations. These all are considered “in this Code are not explicitly declared incapable.

Disability

Inability of fact: the law deprives individuals of the power to act for herself, declaring them incompetent, based on the lack or inadequacy of mental development (the case of unborn persons, minors and the insane), or the inability to express their will (case of the deaf who cannot be implied by any method), whereas the element voluto (will) is central to the formation of any legal proceeding. In summary, the inability to effectively bars certain persons exercise their rights themselves and contract obligations.

Disability law: the law prohibits certain persons to perform certain actions on grounds of incompatibility of order moral or legal.

For example: “Parents cannot contract with the children under their parental authority.” (Art. 279).

  • The inability of law is always relative.

The inability of fact may be:

  • ABSOLUTE: persons of birth (art.63), prepubertal children (art.127), the insane (art. 141) and deaf who cannot make themselves understood in writing (art. 153), the latter two cases should have been declared incompetent by the judge (art. 54).
  • ON: minors are adults, between 14 and 21. (art. 55)

Protection System: Representation of Care

To address the inability of fact people and demand of the principle of equality before the law for all which is supplemented by such disability. In law, there are two main ways:

  1. REPRESENTATION: This occurs when assigning a person to replace the incapacitated in the exercise of his rights and performing acts for which the holder is legally prevented. He acts for one initiative and without concurrence of the will of the incapacitated.

Article 59: In addition to the representatives required, legally incompetent represented by the ministry of children, which is a legitimate and essential in any judicial or extrajudicial proceedings, voluntary or contentious jurisdiction, in which those unable to sue or is sued, or concerned persons or property of them, on pain of invalidity of any act and any trial that any place without their participation.

The representation has the following characters:

  • It is legal because it comes from the law.
  • It is necessary because it cannot be waived.
  • It is dual and joint as it is given to two representatives, the legal representative and the representative promiscuous individual.
  • It is controlled as it is subject to court approval.
  1. SUPPORT SYSTEM: The incapable person is not replaced by another in the exercise of their rights, but called together with another performance of that exercise. The voluntary element is composed of the will of the owner of the rights exercised, supplemented by the will of the person who acts as comptroller.

In fact the frequent failure of the joint functioning of both systems. There conjugation representation and advice in all the various assumptions of action of the representatives with prior judicial authorization, since then the attendance is played by the judge.

Within the operation of legal representation the new art. 57 states that representatives of the disabled are:

  • Persons born, his parents and in the absence or incapacity of these, the curators were named.
  • Unemancipated minors, their parents or guardians.
  • Of the insane or deaf, the curators were named.

The representation of those unable to extend to all acts of civil life and who are not exempted in this code, but are exempted from the generic representation and WIPO representatives called isim personal acts are those which by their nature are only left to the discretionary will of the act. Acts of this kind are: marriage, recognition of paternity, wills, divorce action, the revocation of donation for ingratitude of the donee.

The Disabled

The major reform bill prepared by 17,711 in 1968, embodies the art. 152 bis, which states that legally may be disabled:

  1. For those of habitual drunkenness or drug use are exposed to obtain legal acts detrimental to their person or property;
  2. To its powers diminished when the judge finds that the exercise of their full capacity can be presumed damage to his person or heritage;
  3. Those for the bounty of the acts of administration and disposition of its assets exposed to loss his family heritage. Proceed only if the disqualification is that if the person concerned had a spouse, ascendants or descendants, and has squandered an important part of their heritage. The action for this disqualification shall be restricted to spouses, ascendants and descendants.

This would tend to further protect immediate family, the prodigal to it, there is no legal protection for more squandering of property incurred, except that it is a mental patient.

Procedure: In this case should be declared by the judge referring the bill to ban pro processing of insanity. Referring to cases of dementia and rehabilitation requires a new sentence for the latter case.

Effects: The judge appoints a guardian to the disabled, who cannot dispose of their property by inter vivos and may do so only in acts of administration. The curator provides compliance by allowing the disabled to provide it, if you need both the will without which no act value, is zero. In contrast, when operating the single representation manifests the will of the representative (guardian), not the represented (insane or deaf injunctions).

As a result, it is concluded that the disabled, a person can in fact with some limitations.

The Insane

Included among the total inability to actually insane. The same goes for the insane declared such by final judicial decision, i.e. the injunctions.

Section 140: “No person shall be given by insane, to the effect that this code is determined, without the prior complaint is verified and declared by a competent court”

The first sentence being understood as referring to the inability of fact the person. The non-demented injunction can in fact be subject to no valid legal acts performed as such, nor power fault on illegality, as the lack of reason (insight), has no legal will.

Concept and Requirements

Article 141 “complaint are declared incompetent by those who by reason of mental illness do not have skills to manage his person or administer his property.”

Both collections (of mental illness and unable to manage his person or administer his property) must be satisfied for appropriate judicial declaration of insanity. For this statement appropriate person must be 14 years old, a judicial declaration of the claim “can not be done except at the request of party,” the judge is forbidden to promote trade, i.e., by choice.

Judicial Procedure

He is commonly called insanity trial. Its rules should be sole responsibility of the provinces.

Procedural Rules

  1. PEOPLE WHO CAN ASK THE DECLARATION OF DEMENTIA:
    • The husband or wife is not divorced.
    • Relatives of this madman.
    • The Ministry of Children.
    • Consul, if this lunatic was abroad.
    • Any person or people, when the madman is angry, or uncomfortable with their neighbors.
  2. APPOINTMENT OF CURATOR:

    The appointment of a guardian is mandatory in any jurisdiction where the trial permit application, since it guarantees the right to defense.

    Article 147: “Brought the request of dementia should be appointed for the defendant as insane, a temporary guardian to represent and defend against the suit, until it takes its final sentence. At trial, the Ministry is an essential part of children.”

    Article 148: “Where the complaint appears obvious and undeniable judge immediately sent to collect the assets of this insane surrender, with inventory at a temporary conservator to manage that.”

    Section 149: “If the defendant was insane as a minor, your parent or guardian shall act as the provisional curator.”

  3. MEDICAL EXPERTISE:

    Article 142: “the judicial declaration of the complaint can not be done except at the request of either party and after a review of doctors. It is a guarantee that the law imposes on receipt of the defendant insane. The trial judge can not ignore the medical exam, nor permit its non-production, albeit obvious mental illness.”

    Article 143: “If the medical examination dementia proves to be effective, must be qualified in their respective character, and if mania, you should say whether partial or total.”

Civil emancipation

Emancipation is the institution which gives children the freedom of the disability that falls on them to adulthood.

Emancipation through marriage

On our right the first cause of emancipation is marriage.

Requirements for this emancipation are:

  • Have age for marriage, which are 16 years for males and 14 for women.
  • Have celebrated marriage.

17,711 law says that “marriage between minors are emancipated and acquire civilian capacity with the limitations provided by art. 134.

Age Qualification emancipation

The most important development of the law capacity 17,711, is the renovation of the old school of the empowerment age. But the new art. 134 reads “Children who have turned eighteen may emancipate age empowerment, by decision of the person exercising parental authority over them. If they are under supervision, to enable the judge may order the guardian or the child, upon summary information on the suitability of it.

It is great that the law has not conferred on 17,711 less under normal parental rights, the right to empowerment against the opposition of the father.

Assimilation of age enabled emancipated by marriage, therefore enabling the effects of age, not the law expressly slogan. The new art. 131 when she faces the status of the freed capacity, refers to “marriage between minors” acquire civilian capacity with the limitations provided for in art. 134.

The regime’s ability emancipated minor, is cause for extension of custody and guardianship, and the inability of the child. An emancipated minor is in the capacity situation of older persons and is enabled for all acts of civil life.

The emancipated by marriage is absolutely prohibited acts, cannot be authorized by the juvenile defender and under penalty of nullity, adopt the accounts of their guardians and to finalize them, or make donations of any kind.

Causes Emancipation

Until the enactment of the law knew only 17,711 civil emancipation originated in marriage, but foreign law gave other reasons for cessation of the inability of children: They are:

Legal Emancipation

Na is produced by the marriage. Worse German civil code does not know the emancipation by marriage, but the most anticipated statement.

In Brazil, civil emancipation causes the exercise of public employment.

In Peru, emancipated holders of a certificate to the exercise of profession or trade.

Commercial Emancipation

It is given to the minor in order to enable it to exercise the trade, the basic conditions for acquiring merchant status for someone who has been governed by the Civil Code must be regulated by it.

Among us is determined by the art.10 and 11 of the Commercial Code.

  • Article 10: “Anyone over 18 can engage in commerce with such attesting be emancipated or legally authorized.”
  • Article 11: “It is self-emancipation” (1) containing the authorization of the father or mother to you. (2) being registered and issued in the respective commercial court. Meet these requirements, the minor is more renowned for all instruments and trade obligations.

The law provides 17,711 in the new art. 131 that “the purpose of the exercise of trade enabled it must comply with the provisions of the respective code.

Cessation of Civil Emancipation

  • When the child reaches adulthood, concludes the right.
  • When the marriage is annulled.
  • When empowerment is because of age, and emancipation is revoked by the judge to have an impact must be registered in the revocation of registration of civil status and capacity of people.

Exercise responsibility for parenting. Art 358 and 359 LOPNNA.

The responsibility includes the duty to foster and shared right equal and inalienable father and mother love, raise, train, educate, care for, monitor, maintain and support material, moral and emotionally to their children and continue to apply appropriate corrective measures do not violate their dignity, rights, warrants or development. Consequently, corrective prohibits any physical, psychological violence or humiliating treatment at the expense of children and adolescents

Gender Equality

The father and mother exercise parental authority have a duty shared exert equal and inalienable responsibility of raising their sons or daughters, and be responsible in civil, administrative and criminal law for its poor enforcement. In case of divorce, separation, nullity or separate residences, the entire contents of the parenting responsibility will remain exercisable jointly by the father and mother.

Article 387 .- System of family life

The family living arrangements should be mutually agreed between the father and mother, listening to the child. Failing such agreement, either parent or teen, you may apply to the judge to set the rules on family life, who will decide in the best interests of children. The decision may be reviewed at the request of a party, whenever the welfare of the child or adolescent is justified.

Article 389-A .- Failure of family living arrangements

The father, mother, or who exercises custody, who repeatedly and unjustifiably infringed the rules of family life, hindering the enjoyment of the right of the child or adolescent relationships and direct contact with their father or mother may be deprived of custody.

Support

INCLUDES EVERYTHING ON THE SUPPORT, clothing, housing, education, culture, HELP AND CARE, MEDICINES, RECREATION AND SPORT, REQUIRED BY THE CHILD AND ADOLESCENT GIRLS.

Determination of maintenance

To determine the support obligation, the court or judge must take into account the needs and interests of the child or adolescent who requires it, the economic capacity of forced or coerced, the principle of unity of descent, gender equity family relations and recognition of housework as an economic activity that creates added value and produces wealth and welfare.

When the forced or obliged to work without dependency ratio, economic capacity will be established by any suitable means.

The amount payable by way of support obligation shall be a sum of legal tender, for which they shall refer the monthly minimum wage that has established the National Executive for the time the decision was rendered. In the award may provide for the automatic increase that amount, which comes when there is proof that the child support obligated receive an increase in their income.

Venezuelan law has created mechanisms to protect and guarantee the rights of all persons who are in the country, especially children and adolescents who have a special law that regulates all its legal environment, setting out their duties and rights as is the Organic Law for the Protection of Children and Adolescents (LOPNA).

One of the specific rights that has been awarded and recognized for Children and Adolescents is the right to justice, which is that if a child or teen has violated any of your rights may appear before the Courts of Protection to file the application and these are obliged to guarantee the return of that right.

This right has its roots in the Civil Code of the Republic of Venezuela in 1862, when Title VII concerning parental authority in Article 268, states that the child can go before the judge to request authorization to accept an inheritance, bequest or gift .- Since 1862, he recognizes the child, regardless of age, the right to go before the judge to seek such authorization. In that article there is no age distinction refers to the child under parental authority. Based on the provisions of Article 87 of the Organic Law for the Protection of Children and Adolescents, who may appear before the judge to request authorization to accept an inheritance, bequest or gift is the adolescent, because it has full capability to present the request directly to the judge.

The right to justice as laid down in Article 87 of the Organic Law for the Protection of Children and Adolescents, is exercised by the courts of Protection of Children and Adolescents, is for them that in 2005, field study was conducted in the thirteen (13) Chambers of the Courts of Protection of Children and Adolescents of the Metropolitan Area of Caracas, with the aim of finding, whether there was a file directly by opening a Child or Teen in those courts, for which we proceeded to review the books and indexes of cases, not being in any one file Salas started by a child or adolescent; proceeding then conduct questionnaires the Judges of the thirteen (13) courtrooms Protection Caracas metropolitan area.

From that research and application of questionnaires, we can point to that time, Article 87 of the Organic Law for the Protection of Children and Adolescents was not being applied, and the root causes why the Children and Young did not go to the Protection Courts for Children and Adolescent or were: First, the lack of knowledge of that right had been recognized that the Organic Law for the Protection of Children and Adolescents, secondly, the lack of uniform criteria for judges in relation and the child should be represented or whether he could make his complaint directly before the courts, and thirdly, by age and ability of discernment, because Article 87 says that all children and adolescents are entitled to go before a Court to defend their rights, a child would not have the ability to discern when it is violating their rights, and to which agency should go, that recognition that makes the child, not be exercised by him, that’s why this right should only be given to the adolescents, their ability to discern.

Jurisprudence

In this regard the Supreme Court of Justice in Case of Social Cassation dated 17 May 2001, with presentation of Judge Alfonso Valbuena, which refers to a conflict of jurisdiction, yet at one point is Article 87 of the Organic Law for the Protection of Children and Adolescents, i.e. the right to justice, has been arguing:

(…)

  1. Article 87 of LOPNA enshrines the right of all children and adolescents to go before a competent, independent and impartial, to defend their rights and interests as it decides on its petition within the statutory periods. All adolescents are fully capable of directly and personally to exercise this right for which purpose the State shall provide free legal assistance and representation to children and adolescents who lack financial means.
  2. The duty of care by the state, as stipulated in Article 87 above, it reinforces or complements that of parents and guardians who bear, first, that duty of care. For lack of a parent or guardian of the child or adolescent or when between them and those any conflict of interest, the state will fully support and representation. Judicial Affairs case the court called upon to determine assumes a protective function.

As established by the Supreme Court, when there is conflict between the child or adolescent and their parents, the State must assume the representation or assistance through the state auxiliary bodies such as the Defenders, Prosecutors and Protection Councils. When it comes to legal matters, custody, parenting and maintenance responsibility, the judge hearing the case assumes a protective function and should guarantee the rights of the child or adolescent to the interests of parents.

In the case of Venezuela, which has been given to adolescents is a healthy active participation in trials where they are major stakeholders and due to its maturity, the judge must give the necessary attention to it according to their higher level of development.

This has proved that Article 87 of the Organic Law for the Protection of Children and Adolescent, refers to the right of the adolescents directly initiate some processes, such as deprivation of parental rights, review and amendment of responsibility raising and fixing the support obligation, was attributed to teenagers standing, i.e. the possibility for starting a trial in order to secure the return of the right violated.

In conclusion, the Courts of Protection of Children and Adolescents of the Caracas metropolitan area were not applying the provisions of Article 87 of the Organic Law for the Protection, believing that children and adolescents at the time of filing the complaint should be assisted or represented by a Public Defender, Chief Prosecutor of Protection or, in other words, the State must guarantee free care and free legal representation to children and adolescents to enable them to exercise their right to defense. By that time, go directly to children or adolescents at the Defenders, Protection Councils or prosecutors, would bring the complaint to the court list and would not order their service to represent the child in the successive acts, and would satisfy the principle of procedural speed.

However, with the enactment of the Reform of the Organic Law for the Protection of Children and Adolescents, dated December 10, 2007, According to Official Gazette No. 5859, demand may be presented in oral or written, and is recognized in section 451 eiusdem, full standing of adolescents, so the criterion held by the Courts for that date would not

be applicable at the present time, ie they can go directly to the Court to present his claims in oral form, and the Court to admit and manage the notification of the prosecutor, and thus exercise their role of protecting the rights of adolescents.
The separation, annulment and divorce does not absolve parents of their obligations towards their children. The Law 15/2005 of 8 July, on amending the Civil Code relating to separation and divorce, has introduced important changes regarding the custody and custody of children.

It is the same as the “guardianship and custody” to “parental authority”. It is normal that custody be granted to both and are deprived of them only in extreme cases (abuse, failure to provide food, etc.).

The spouses may agree by contract, or the judge decide, where appropriate, that the exercise of parental authority is attributed to only one spouse or both of sharing arrangements. In the latter case it would be the figure of “custody”.

Spanish courts are not taking this measure because they believe it is counterproductive to the welfare of minor children.

You remember the exercise of shared custody of children when parents request it in the proposed regulatory agreement or when both reach this agreement during the procedure. The court, agreeing to joint custody and after base its decision, take the precautions appropriate for the effective performance of the system of care established, careful not to separate the brothers.

In any case, before agreeing the custody arrangements, the judge shall obtain the report of the Public Prosecutor and hearing children who have enough sense when deemed necessary or requested by the prosecutor office, parties or members of the Judicial Task Force , or the minor, assess the arguments of the parties expressed at the hearing and the evidence examined in it, and the relationship between parents keep themselves and their children to determine their suitability to care regime.

There shall be no joint custody if either parent is entered into an initiated criminal proceedings for crimes against life, physical integrity, freedom, moral integrity or sexual freedom and indemnity from the other spouse or children who live with both . Nor will proceed when the court gives notice of the arguments of the parties and the evidence, the existence of strong evidence of domestic violence.

Exceptionally, even if they are given the above assumptions, the Judge, at the request of either party, with a favorable report of the prosecution, agree to shared custody grounds that only thus will adequately protect the interests of the lower.

The judge, before taking any decisions made in the preceding paragraphs, either automatically or request, may obtain appropriately qualified opinion on the suitability of an exercise of parental authority and custody arrangements of minors.

The attribution of custody requires attending to the specific facts, combined with the statutory criteria:


– The best interests of children.

– The right of hearing children.

– The principle of separation of siblings is not referred to in Art. 92 paragraphs. 4. º, Civil Code.

– The age of children

– The time available to parents

– The coexistence of the applicant with a third person

– The place of residence, etc..


It is for the judge make the final decision by analyzing several factors, although in 95% of cases, the ruling is favorable to the mother.

If there is mutual agreement between both parents the court may ratify what they have agreed to both, unless it considers that there may be a clear risk to minors.


If no prior agreement, justice decides, taking into account:


1 .- No separate the brothers.


2 .- The affective and emotional needs them.


3 .- The proximity of other family members (grandparents, for example).


4 .- The availability of parents to serve them better or worse.


5 .- If either spouse has some kind of addiction, mental illness or type of disordered life.


6 .- Another criterion which takes into account the judge, and which is often the most decisive, is the dedication that each parent has had to place the child before the break. (in 95% of cases are awarded to women).



It will also fix a system of visits is the time the child lives with the parent without custody. Typically, a system of visits alternate weekends and holidays from 50%, but can be flexible if a good relationship between parents.


If a dispute between the parties, is required to establish a minimum system detailing the periods, days and hours of collection, and who is the person who will look to minors.



And when the child is older than 13 years will take their views into account when establishing the scheme and the dates of the visits.


Rights and obligations of parents towards their children:


In custody:



A) Rights:

1 .- The daily enjoyment of children.
2 .- Make decisions that affect children in day to day.
3 .- Manage your assets and alimony.



B) Obligations:

1 .- feed, educate and provide the needed companionship and affection.
2 .- To facilitate compliance with visitation.
3 .- To inform the other parent of major incidents that happen to the child.

Without custody:



A) Human

1 .- Enjoy the agreed visitation.
2 .- Be informed of all significant incidents.
3 .- To exercise parental authority, which is still shared, unless the judge otherwise.
4 .- Going to court if there is any breach.



B) Obligations



1 .- To comply with whatever is agreed in the regulatory agreement (visitation, alimony …)
2.-Ensure them in everything that concerns health, education and development of their person.


Unions In fact:


Parents can agree as they see fit with respect to the exercise of guardianship and custody but no one can agree to waive the payment of maintenance for children or that they are paid by a third person other than the parents.

If this deal does not exist, judicial intervention is required and exceptions, the judge gave both parents the custody and guardianship and custody to one with whom the child live together. The other parent will be given a regime of visits and communications so that you can get the child, usually alternate weekends and half of the vacation periods.

In the case of children whose parents are not married:

If the child was recognized only by the mother, is she who will have custody only. And if the child was acknowledged by both parents, the above distinction applies if your parents live together or apart.

If the child is not recognized by his father and seeks recognition through trial claim paternity, and the father denies paternity, but then the judge determines that this is indeed the father, he loses all his rights granted custody.

The father and / or mother who has custody, shall have the following rights regarding the property of the children:

1 .- The administration of the child’s property. To protect the security of real estate of the son, in case the parent who has custody wants to sell or mortgage any of them will need court approval.



2 .- The judicial representation of both child (whether the child is the plaintiff or defendant) and court (eg, for signing contracts or dealing with a bank to obtain a savings account for the child)



3 .- The enjoyment of the real estate of the child, ie the ability to use their movable or immovable, such as leasing the home of the child and receive the monthly lease payment.



And finally, it raises some very common questions such as whether a woman is what has caused the separation, if it can automatically lose custody of their children, and if it lacks the financial means or because they have no work. That is not because women usually have the care and custody of minor children, and only you can lose when you have severe behavior problems: drug addiction, alcoholism, etc.., Or because they have decided to jointly both spouses.

Anyway it is always advisable to consult a specialist professional in this field for any questions that may arise in this regard.