Análisis de los criterios desarrollados en la sentencia No. 28-15-IN/21 que declara la inconstitucionalidad de los numerales 2 y 4 del art. 106 del CONA y su aplicación en los casos de fijación de la tenencia de niños, niñas y adolescentes por parte de los jueces del cantón Cuenca

Abstract

This research addressed the legal issue arising from the application of the jurisprudential criteria established by the Constitutional Court in ruling No. 28-15 IN/21, which declared the unconstitutionality of items 2 and 4 of Article 106 of the Organic Code of Childhood and Adolescence. The general objective was to legally and constitutionally analyze how these criteria are being applied in custody cases involving children and adolescents in the canton of Cuenca, with emphasis on the guarantee of the principle of equality, the best interests of the child, and parental co-responsibility. To achieve this goal, a qualitative approach was used, with an exploratory and explanatory level of research, supported by the hermeneutic-legal method. The research design was descriptive and analytical, allowing for a detailed review of relevant documentary sources, such as the constitutional ruling and applicable regulations. A comparison was also made with Spanish legislation to contrast models and criteria applicable to custody decisions. Among the most relevant findings, it was observed that judges in the canton of Cuenca do not uniformly apply the criteria established in the ruling, with some decisions still influenced by gender stereotypes and a lack of sufficient legal reasoning. Although some progress has been recorded in certain rulings regarding the assessment of the best interests of the child and parental co-responsibility, the practical implementation of constitutional jurisprudence remains limited. It was concluded that judicial training must be strengthened and clear guidelines developed to ensure the effective application of the principles established by the Constitutional Court.