Many people tend to confuse parental authority and custody of minor children, which is why we dedicate this article to these two fundamental issues in raising children. Let’s start by knowing what is meant by Parental Authority:
“It is the set of rights and obligations recognized by the Law to parents and grandparents in relation to their children and grandchildren to care for, protect and educate them, in an environment of respect and well-being.”
Based on this concept, we can understand that the figure of Parental Authority is the legal way of expressing what by nature is the right of every human being at birth, it is the way of States to guarantee that families offer each new human being, a safe, healthy, affectionate environment, with education and good values, in which to grow and develop new good citizens.
This inalienable function of the father and the mother is natural and fluid when the family is in a healthy coexistence and the married or common-law parents share the home, it is so implicit that it is not even contemplated as a legal duty; but once the parents decide to separate, whether they were legally married or if they lived in free union, the rights and obligations for the parents continue to be the same with respect to the children and as well as for Marriage and Divorce, each State of The Mexican Republic has its own regulations, in the case of the State of Quintana Roo, all these areas are regulated by the Civil Code for the State of Quintana Roo.
Let’s explain what guardianship and custody is: “It is one of the rights inherent to parental authority, which entails living with the minor child, ensuring their surveillance, protection and care, as the responsibility of both parents from the moment of birth of a child, is the right of the minor to have a home and receive the necessary care to grow in a healthy environment, physically and psychologically, and the obligation of parents to provide it”. In cases in which the parents separate or have never lived together (legally or in fact), the conditions of custody of the minor child must be agreed; if the parents do not reach a mutual agreement in this regard, they must be present before a family judge, who will decide after analyzing each particular case, listening to both the parents and the minor if they were able to testify, who will exercise the guardianship and custody.
In Quintana Roo, the Civil Code establishes in article 997.- “In the event that the parents live separately, and the children are under twelve years of age, custody will correspond preferably to the mother, unless there is risk or danger. The other will be obliged to collaborate with their food and upbringing, preserving the right of coexistence with the minor person, in accordance with the modalities provided in the agreement or judicial resolution”.
Although the mother has the preference that custody of minors under 12 years of age be granted, this will be analyzed and established by the authority in benefit of the interests of the minor, likewise it will provide for the obligations and rights of coexistence and maintenance of the father. or the mother, depending on the case of the person who does not have custody. Children have the right to live with both parents and other relatives, even if they do not live under the same roof, so the one who is the holder of custody cannot prevent that coexistence without a just cause, and the affected party can request the Judge of the family, who will always resolve in favor of the interests of the minor, the most convenient coexistence scheme for their well-being, this decision can only be limited or suspended by court order, if it is considered that there has been a repeated breach of parenting obligations or danger to the integrity of the minor. In recent years, different resolutions have been issued by the highest courts of the Mexican Republic in which it has been determined that fathers have the same rights over their children as mothers and therefore family judges must study each case in detail to determine who is the most qualified person to exercise the guardianship and custody of the children.
As we have already seen, it is very easy to confuse these concepts in everyday life, but they are different legal figures.
Guardianship and custody focuses on habitual coexistence with minor children, covering their food, clothing, medical care, home, education and everything required for their healthy growth and development.
For its part, parental authority refers to the administration of the minor’s assets and their general representation.
The difference between these concepts is especially evident in cases of separation or divorce of the parents. From there, one of the parents can end up with full guardianship and custody, while parental authority continues to belong to both, unless by court order one of the two or both are prevented from exercising it.
Upbringing is the responsibility of the mother, father and in a broader sense also of the grandparents, in the absence or inability of the parents to exercise parental authority, the fact that mother and father cease to be a couple does not justify the abandonment of their responsibilities towards their children, the parent who assumes custody must be able to count on the support of the other for a healthy upbringing, economically, affectively and mentally. International, national and local laws prevail in defense of the interests and well-being of children, which is why there are very rigorous regulations in defense of them, even on their parents, if they fail to comply with their duties and parental rights. It is the duty of the mother or father in charge of custody and custody, if it is not fulfilled, to claim the rights of their minor child, with respect to the responsibilities of the other parent, even if the one with custody can cover the economic responsibilities of unilaterally, which is not correct, there are other needs for education, affection and security that each parent must provide for the healthy upbringing of a child. The Anaya Legal Playa team is highly qualified to advise you for the welfare of your children.