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Bencosme v. Devers

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Court/Judicial body: Supreme Court of the Dominican Republic
Date: May 30, 2007  CRC
Provisions: Article 12: The child’s opinion
Domestic provisions: Law 136-03, Code for System of Protection of Fundamental Rights Children and Adolescents, Articles 16, 91 & 95

Case summary

Background: A father had been awarded custody of his daughter as a result of a court case in which a psychologist gave evidence to the effect that the daughter had stated that she wished to live with her father. The mother of the child appealed against this decision and asked the courts to grant her custody of her daughter.

Issue and resolution: Child custody and participation. The Court legitimately considered the daughter’s views as to with which parent she wished to live.

Court reasoning: In a custody case, the rights of the adult are taken into account, but the rights of the child must be prioritised. The Court weighed all the relevant factors as required by domestic children’s rights legislation in coming to its decision and, looking to the Convention on the Rights of the Child for guidance, considered that the daughter had the requisite emotional maturity to determine in which home she wanted to live.
Excerpt citing the CRC and other relevant human rights instrumentsas translated by CRIN:In support of the first and second appeals, which come together in the decision, the appelant alleges that [the lower Court] violated articles 16 and 91 of Law No.136-03, which establish that children have the right to express their opinions freely, to be listened to and have their views taken into account in accordance with their evolving capacity – rights which are also set out in Article 12 of the UN Convention on the Rights of Child – when it accepted the opinion of the girl, Adeliz, as the determining factor in the case without the presence of an expert in human behaviour. Such an expert would have been able to establish the degree of emotional maturity of the minor in light of the background of abuse and manipulation to which she was subjected. Furthermore, Article 95 of Law No. 136-03 establishes that custody must be decided or revoked through a decision made by the Children’s Court at the request of the interested party, the National Council for Children and Adolescents with the Public Ministry of Children and Adolescents. The fifth principle enshrined in Law Number 136-03 protects the best interests of the child, which must always be taken into account in the application and interpretation of Law No. 136-03 and is mandatory for all decisions affecting them. In making such decisions, a balance must be struck between protecting the rights and guarantees of the child and prioritising their rights in relation to the rights of adults. The appelant argues that the appeal decision does not establish or determine the rights of the child in relation to the rights of the mother, and that therefore the Court’s decision benefits one of the parents instead of guaranteeing and protecting the minor’s right to identity and to a family; in this way, it violates the supremacy of the rights of minors over those of adults. In reviewing the documents, facts and circumstances of the case of the interested parties, the judge or authority charged with issuing the legal decision in such a case must apply the fundamental principles enshrined in the Convention on the Rights of the Child and the provisions set out in Law No. 136-03 which must prioritise the best interests of the child in granting or revoking custody. This is the primary determinant in granting custody given that the person to whom custody is granted must guarantee the well-being of the child in accordance with their best interests. … The appelant alleges violations of articles 16, 91, 95 of law number 136-03, the fifth principle as well as Article 12 of the Convention on the Rights of the Child which enshrine children’s right to express their opinions freely, to be listened to and have their views taken into account in accordance with their evolving capacities which should be recognised in all procedures pertaining to custody which must be pronounced or reviewed through a decision issued by Children’s Court at the request of the interested party or other bodies determined by this legal provision.

CRIN comments: CRIN believes that this decision is consistent with the CRC. Under Article 12 of the Convention, children must be allowed to freely express their views and, as recognised by the Court, these views must be given due weight in accordance with the child’s age and maturity.

Citation: Sentencia del 30 Mayo del 2007 

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