La Responsabilidad Civil en el Ejercicio de la Parentalidad

CONTENTS

PROLOGUE 15

ACKNOWLEDGMENTS 21

INTRODUCTION 23

CHAPTER I.

ON THE INTERACTION BETWEEN FAMILY LAW AND CIVIL LIABILITY. SOME IDEAS FOR COLOMBIAN LAW 55

1.1. A First Look at the Problems Surrounding the Family in Colombia 57

1.1.1. The Chaos of Definitions and Its Impact on the Determination of Relevant Interests 57

1.1.2. The Jurisprudential Revolution in Family Matters in Colombia 70

1.1.3. The Revolution That Wasn't: A First Look at the Inability of Criminal and Civil Law to Remedy Certain Harms 84

1.2. In Search of Alternatives: Civil Liability as a Tool for Recognizing New Relevant Interests 90

1.2.1. Protected Interests in the Family: Between Individualism and Solidarity 94

1.2.2. The "Exclusionary" and "Pretextuous" Aspects of Solidarity 103

1.3. How to Harmonize Civil Liability and Family Law? 110

1.3.1. Non-Rights and Family Autonomy as an Alternative That Can Mask Interests 110

1.3.2. Drafting New Ad Hoc Rules as an Alternative That Reproduces Chaos 114

1.3.3. Application of General Rules of Private Law and Their Constitutional Interpretation as a Way to Adapt the Law 117

1.4. Immunity in Family Relationships as a Precedent 129

1.4.1. A First Approach to Immunity 129

1.4.2. Immunity in Colombian Positive Law 133

CHAPTER II

CIVIL LIABILITY FOR VIOLATION OF PARENTAL DUTIES IN ITALY: FOUR EXAMPLES 139

2.1. Domestic Violence and Abuse 140

2.1.1. Difficulties in Characterizing and Punishing Violence 141

2.1.2. Jus corrigendi, Punishment, and Parental Authority as Possible Sources of Immunity Against Violence 148

2.1.3. Violence and Italian Criminal Law 155

2.1.4. Violence, Italian Family Law, and Protection Orders Against Domestic Abuse 162

2.1.5. Differences Between Protection Orders and Child Protection Measures 169

2.2. Violation or Non-compliance with Parental Duties 178

2.2.1. Some criteria for interpreting the content and scope of parental duties 180

2.2.2. Duty of support 185

2.2.3. Duty of education and duty of instruction 192

2.2.4. Duty of moral assistance 195

2.2.5. Duty to ensure family growth 196

2.2.6. Duty to ensure meaningful relationships with relatives 197

2.2.7. Duty to listen to the child 200

2.2.8. Characterization of the breach of parental duties and family law remedies 202

2.2.9. Criminal law regarding breach of parental duties 206

2.2.10. Article 709-ter of the Criminal Code and the introduction of civil liability of parents for intra-family damages into positive law 208

2.3. Some considerations prior to identifying damages related to the parentage of an illegitimate child in Italy 219

2.4. Non-recognition of an illegitimate child 223

2.4.1. Necessary elements for the configuration and assessment of the damage 225

2.4.2. Deprivation of the parental relationship as a harm 227

2.4.3. Liability for the fact of procreation as a relevant element for the attribution of civil liability 229

2.4.4. Civil liability of the father who refuses to recognize an illegitimate child whose existence he knows exists 234

2.4.5. Limitation period for civil liability actions 238

2.5. Challenging a consciously false recognition and consequent abandonment of the recognized child 240

2.5.1. Legitimate interest of the falsely recognized child 242

2.5.2. The consciously false acknowledgment of a child and its criminal relevance 246

2.5.3. Challenging acknowledgment due to a lack of truthfulness and the systematic contradiction it entails 248

2.5.4. Good faith as a criterion for assessing the conduct of the acknowledgment 254

2.5.5. Configuration of civil liability for the consciously false acknowledgment of a child born out of wedlock 256

CHAPTER III

CNIL LIABILITY FOR VIOLATION OF PARENTAL DUTIES IN COLOMBIA: FOUR EXAMPLES 267

3.1. Some considerations on parental responsibility in the Colombian legal system 268

3.2. Domestic violence and abuse 270

3.2.1. Difficulties in characterizing and punishing violence in Colombia 271

3.2.2. Rejection of Violence in Colombian Legal Sources 281

3.2.3. Characterization of Domestic Violence in Colombia 288

3.2.4. Compensation for DamagesDomestic violence does have precedents in legislation 291

3.2.5. The timid emergence of jurisprudence: violence as a source of domestic harm 296

3.2.6. Protective measures for victims of domestic violence 309

3.2.7. Domestic violence and criminal law 316

3.2.8. Domestic violence and family law, children, and adolescents 324

3.3. Violation or non-compliance with parental duties 330

3.3.1. Parental duties according to the Civil Code: the veneration of parental authority 331

3.3.2. Parental duties according to the Children and Adolescents Code 339

3.3.3. Duty of upbringing, custody, and personal care 342

3.3.4. Duty of Education 344

3.3.5. Duty of Support 347

3.3.6. Duty of Correction 348

3.3.7. Duty of Protection 349

3.3.8. Criminal Law Regarding the Breach of Parental Duties 351

3.4. Some Considerations Prior to Identifying the Harms Related to the Affiliation of an Extramarital Child in Colombia 357

3.5. Non-Recognition of an Extramarital Child 363

3.5.1. General Aspects of Recognition: Is There a Legal Duty to Recognize a Child? 364

3.5.2. Civil Law Regarding the Non-Recognition of an Extramarital Child 366

3.5.3. Civil Liability for Failure to Recognize an Extramarital Child 368

3.6. Challenging a Consciously False Recognition and the Subsequent Abandonment of the Recognized Person 371

3.6.1. False Recognition and Criminal Law 372

3.6.2. False Recognition and Civil Law: Challenge and Damages According to Jurisprudence 374

3.6.3. Contradictions in the Legal System: Certainty of Civil Status to the Detriment of Children 377

CHAPTER IV

TOWARDS A NEW MODEL OF CIVIL LIABILITY FOR INTRAFAMILY DAMAGES: LIABILITY FOR CONCEPTION AS A BASIS FOR OVERCOMING IMMUNITY 383

4.1. Critical Comparison Based on a Shared Element: The Ineffectiveness and Inadequacy of Special Law Remedies 384

4.1.1. Criminal Law and Punitive Populism: Prevention, Alternative Sentencing, and Conciliation as Critical Points 385

4.1.2. Civil Law and Family Law: Immunity as an Unwritten Rule 404

4.2. Contribution to a New Treatment of Intrafamilial Harm in Parent-Child Relationships: Responsibility for Conception and New Functions of Remedies 420

4.2.1. Toward a New Reading of the Parental Role Based on Principles: Responsibility for Conception, Self-Responsibility, and Good Faith 421

4.2.2. Some Specific Recommendations: Toward Comprehensive Remedies and a Differential Approach 437

BIBLIOGRAPHY 459