In terms of protection, upbringing and development of children and young people in Colombia, various figures have been created to support these issues. The parental authority is one of those figures that grant rights and duties to parents over their children in order to provide them with the proper development and care.
In this opportunity we want to explain what parental authority consists of, what laws regulate it, what differentiates it from custody and other related topics.
What is parental rights?
Pursuant to
article 288
of the Colombian Civil Code, parental authority “is the set of rights and obligations that the law recognizes to parents over their unemancipated children, to facilitate the fulfillment of the duties that their quality imposes on them“.
The purpose of parental authority, also called “Parental Power”, is to give parents rights and duties over their children. Parents are responsible for: protection and full development of the child or adolescent in society, management of their assets, authorizations, judicial and extrajudicial representation, among others.
Parental authority is a right that is obtained immediately after the child is recognized, without the need for marriage. This right is of public order, mandatory and unwaivable, personal, non-transferable and non-available.
The term “unemancipated children” refers to those children who are still economically dependent on their parents for their livelihood; a working or married minor is considered an emancipated child.
Difference between parental authority and custody
Since we are dealing with the rights and duties of parents towards their children, there is a tendency to confuse these two terms or treat them as synonyms, although the reality is that they are two independent figures.
As mentioned above, parental rights are rights and duties that people obtain over their unemancipated children, even if there is no marriage; they are of public order, personal, and cannot be reconciled.
Custody refers to the care and custody of the children by one of the parents, this figure is given when there are reasons for separation of the couple or termination of marriage, therefore, custody is grounds for conciliation, where the parties can negotiate the periods of custody or remove the possibility to the other person.
Custody can be lost, but not parental authority, for example, a couple separates and the mother has custody of the child; if the mother wants to travel with her child out of the country, and the child is still a minor and is not emancipated, she must have the father’s authorization, since he still has parental authority over his child.
Another difference is who exercises both figures. While parental authority is personal and non-transferable, i.e. exercised by the parents, custody extends to persons who also live with the person and the child in the family, social and institutional circle: grandparents, uncles, aunts, uncles, babysitters and teachers.
Can parental rights be lost?
There are cases in which a family judge may remove parental rights from a parent, either by temporary suspension or permanently. Such grounds are encouraged in articles 310 and 315 of the Colombian Civil Code:
The grounds for temporary suspension of parental authority are provided for in article 310 of the Colombian Civil Code, which are:
- Mismanagement of the child’s assets.
- Periods of prolonged absence of a parent.
The grounds for the loss of parental authority are contemplated in Article 315 of article 315 of the of the Colombian Civil Code, which are:
- Depravity.
- A custodial sentence for a period of more than one year.
- Felonies that the adolescent has committed with parental permission.
The minor’s relatives (a parent, grandparent or aunt/uncle) may initiate proceedings for the suspension or loss of parental rights before an ex officio judge or a family ombudsman.
Can parental rights be recovered?
Parental rights can only be recovered if they have been temporarily suspended. For this, the parent must demonstrate that the situation for which parental rights were suspended has been overcome.
This procedure must be carried out before the Colombian Institute of Family Welfare (ICBF) or a family judge, it is advisable to have the advice of expert lawyers on the subject to achieve an adequate procedure.
The requirements to petition for parental rights are:
- Submit a verbal or written request to the Family Advocate.
- Demonstrate that the causes for which the parental rights were suspended have been overcome.
- Documents:
- Civil registry of birth of the child or adolescent.
- Applicant’s civil registry to prove relationship.
- Civil registration of death of parents, if applicable.
- Name of two witnesses, indicating address and telephone number (they can be friends or relatives).
- Copy of sentence of deprivation of parental rights, if applicable.
- Copy of the ID of citizenship of the person requesting the guardianship and their location data. Verbal or written request, indicating what the guardianship is needed for.
- Request for reinstatement of the application for appointment.
In summary, parental authority is the rights and duties acquired by parents over their unemancipated children, who must watch over the correct development of the minor and intercede for them as the case may be.
At Servicio Legal, we are experts in family law and we can help in all proceedings related to parental rights, always seeking to ensure that the rights of minors are respected and that they are provided with an adequate environment for growth. If you need advice on your procedures, you can contact us through our website by clicking here .