Visitation regime

The Supreme Court (TS) has confirmed a sentence that does establish a visitation regime between a father and his two minor daughters , even though there was (and still is) a criminal proceeding for gender-based violence initiated following a complaint from the mother .

In this case, the couple has two daughters. After the complaint, criminal proceedings were initiated for gender-based violence and a protection order was issued for the mother , although later that order became ineffective , without implying the closure of the criminal proceedings (the investigation continued). Later on, the parents filed a paternity and custody measures lawsuit . In the first instance, custody was granted to the mother and guardianship and custody to the mother and not set visitation regime for the father, applying the idea that, in contexts of violence, visits should not be agreed upon.

The father appealed and the Provincial Court established a "normal" visitation regime, considering it important to maintain the emotional bond between parents and children and that no risk to the minors had been proven (not even alleged in a specific way). It also rejected visits taking place at a Family Meeting Point due to the distance, and organized the handovers through a father's acquaintance, known by the mother and the girls, at the maternal home.

The mother went to the Supreme Court arguing that visitation could not be set in these cases and that an individual assessment of the risk was necessary. The Supreme Court dismisses the mother's appeal, reminding that, although the general rule is not to set visitation in contexts of violence, there may be exceptions if required by the best interest of the child . To decide this, it says that it is necessary to assess, among other points, the seriousness and scope of the attributed offense, who it affects, its impact on the relationship with the daughters, the provisional nature of being investigated, the duty to protect children, and the harm that a lengthy investigation can cause in emotional ties.

Here, the alleged victim was only the mother, with no signs that the girls suffered abuse or paternal non-compliance. Additionally, more than a year had passed since the protective order without family incidents or an "entrenched" situation of violence. That is why it maintains the established visitation regime.

 

In situations of conflict between parents in the exercise of parental authority and custody of minor children, in a context of gender-based violence, our professionals will provide you with appropriate advice and defense of your interests and those of your children.