Los hijos de crianza: Un asunto de filiación

Abstract

The family, from the 1991 Political Constitution, acquired a relevant seat; very different from the one in the Constitution that preceded it.So in article 42 it is described as: “The family is the fundamental nucleus of society. It is constituted by natural or legal ties, by the free decision of a man and a woman to marry or by the responsible will to form it. “ Thus, through the Constitution, the State consecrated two basic principles to the family: A) The family as the fundamental nucleus of society; and B) That it is the responsibility of the State and the Society to guarantee comprehensive protection. The Constitution then establishes that the family can be constituted in a way: Natural or Legal. This means that, if the family is legal, it is legitimated through marriage, admits the de facto marital union and also regulates adoption. Therefore, the family in general is protected no matter how it arose. The Constitution also provides for several principles, among which the equality of the “children” is reaffirmed regardless of whether they are taken in or outside of marriage, adopted or procreated naturally or with scientific assistance, and for this the State has created all an institution of norms directed to the integral protection of the family as a basic institution of society, as norms tending to protect the rights of children; protection and comprehensive training of adolescents, defines the civil status of the people and the consequent rights and duties, the marriage regime, the patrimonial regime of the spouses, the inheritance law, the hereditary vocation, among others. However, through the legal route that is made in the civil legislation, family, code of childhood and adolescence, we will observe that the concept of affiliation to the “foster child” does not contain it; in such a way that the discussion continues on the table if they have the same rights and obligations as the legitimate, extramarital and adoptive ones. Dispute that is not current, but that this debate began with a lawsuit of unconstitutionality that was promoted by the citizen Brayan Steven Ariza Hernández (expediente D-12340) against article 1045 (partial) of the Civil Code, which, according to it, the expression “children” contained in the accused norm is unconstitutional because it excludes foster children from the first order of succession, giving rise to the violation of articles 1, 13 , 42 and 95 of the Political Constitution of Colombia. To substantiate his position, he pointed out that the concept of family has been extended to foster children and that leaving them outside the first order of succession generates openly discriminatory treatment. He affirmed that the legislator in use of his power of legislative configuration committed an omission by not expressly including in the first hereditary order the foster children, whose filial bond stems from the love, respect and solidarity they have for their parents. Discussion that has not ended, forcing then to have to go to different legal actions such as guardianship to achieve the recognition of some rights as we will see later.