The Second Chamber of the Constitutional Court has upheld a second appeal for protection by a mother from Donostia against the resolutions of the Court of Violence against Women of San Sebastián and the Provincial Court of Guipúzcoadictated within the framework of a divorce procedurefor granting the ex-husband overnight visits to their common daughter, ignoring the context of gender violence exercised by this individual.
This sentence, presentation by the magistrate Maria Luisa Balagueris related to a previous one also by Balaguer that is pioneering, as it established doctrine in terms of rejecting the perpetuated judicial requirement that separated mothers must promote parent-child relationships despite suffering or having suffered sexist violence from their ex-husbands; and this, in the name of the best interests of the minor.
Thus, the TC ruling protected this mother from San Sebastián because the judicial resolutions of the Court of Violence against Women and the Provincial Court required her to facilitate parent-child relationships, ignoring the framework of sexist violencewith the warning that the custody and visitation regime could be modified to the detriment of women.
Now, in this second sentence the mother is protected because her right to effective judicial protection has once again been violated by granting the father overnight visits when the expert reports advised against it and indicated that the visits should continue in progression, that is, linked to the results of the benefits observed in the girl.
The courts had connected the girl’s refusal to sleep at her father’s home with the mother’s attitude of distrust towards the ex-husband and his family, not taking into account the scenario of family conflict in which the girl refused to spend the night with the father and blaming the mother for the little girl’s attitude.
The man was convicted of three crimes of unusual abuse
and a minor crime of unjust humiliation.
The ruling, again presented by María Luisa Balaguer, includes the doctrine established by the previous ruling, dated September 23, and reiterates “the duty of the competent authorities to address the regulation and application of the custody, stay and
visits by minors, sons and daughters of separated or divorced parents, taking into account incidents of gender violence”.
This is essential, among other things, to not continue perpetuating the negative gender roles of women and mothers.
The Constitutional Court affirms that the challenged judicial resolutions ignored “the well-founded indications of sexist violence, thereby contributing to the perpetuation of stereotypical roles of women, such as that of promoter and favorer of filial ties.”
The court of guarantees maintains that the reinforced duty of motivation imposed by article 24.1 of the Constitution on judicial bodies in contexts of gender violence.
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