Especialización en Derecho de Familia

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La adopción como medida de protección para salvaguardar el derecho a los niños, niñas y adolescentes a tener una familia en Colombia
(Universidad Santiago de Cali, 2018) Villafañe Soto, Viviana Andrea; Schaffler, Magdalena
This research work develops a study of the concept of adoption as an integral measure to guarantee the constitutional right of minors to have a family and not to be separated from it, a study that is based on the recognition of children they make International Organizations such as the Organization of the United Nations and the Organization of American States, in the International and American Conventions on the Rights of the Child, and in turn the recognition of that right in the Colombian legal system and in the Jurisprudence of the Constitutional Court as a right and primacy of children and adolescents to grow up in an atmosphere and environment of tranquility, understanding and emotional bonds that guarantee the complete development of them.
Adopción de parejas homosexuales. Un avance de la jurisprudencia constitucional colombiana a partir del garantismo de Luigi Ferrajoli
(Universidad Santiago de Cali, 2018) Mina Zapata, Alexander; Schaffler, Magdalena
This essay examines two sentences of protection issued by the Constitutional Court in which the existing paradigms face the possibility of the adoption of children and adolescents by same-sex couples in the Colombian context. On the one hand the sentence T-276 of 2012, the adoption is granted to a foreign citizen of two younger brothers who got frustrated at the last minute, due to the sexual condition of the adopter, thus the Colombian Family Welfare Institute (ICBF) ), informs the American embassy in Colombia that it does not allow minors to leave the country; The second sentence is the SU-617 of 2014, analyzes the case about two biological mothers who maintain a sentimental relationship, and one of them decides to initiate the process of adoption of the son of his partner. The Constitutional Court, when carrying out the legal and sociological analysis of the cases in question, makes decisions in which it grants the protected right; However, despite the victory of the guardian there are aspects that can be crit icized by the Constitutional Court, because it omits the discussion on discrimination of the guardianship actors, when it was openly a matter of gender discrimination.
La adopción en Colombia como medida de protección, frente a una nueva familia y la sociedad
(Universidad Santiago de Cali, 2019) Batero García, Vivian Julieth; Schaffler, Magdalena
Adoption as a topic concerning family law and of Children and Adolescents has been constitutionalized in Colombia and internationally, which is why this work contemplates new orientations and focuses on laws, principles and values taken into account in our constitution, in addition to the approaches that relate to this topic. The characteristics presented in this paper were carried out in an easy to understand form in a theoretical and practical way, which makes it useful for the student, lawyers and the reader, taking into account that it presents a general approach and jurisprudence on the subject of Adoption as a factor of family law in Colombia, opening ways to understand what is the adoption for the law, childhood and adolescence and as the essential mechanisms to adopt and respect the fundamental rights of the child and his family when he has carried out a process of restoration of rights.
La adopción requisito de idoneidad física en personas con discapacidad en la legislación Colombiana
(Universidad Santiago de Cali, 2017) Salazar Valbuena, Claudia Alejandra; Moreno Viafara, Ferney
Is it the discriminatory requirement of physical suitability of the adoption to form a family of people with disabilities in the Colombian legal system? The requirement of physical suitability on the adoption front people in situation of disability, has been matter of jurisprudential study in reason that people with disabilities have interpreted it as discriminatory, which is studied from the constitutional protection of this special protection group, and their right to form a family. Defines the family, its formation and adoption in Colombia; in conjunction with the law that establishes the requirement of physical suitability in the adoption (Law 1098 / 2006).
La adopción se convierte en una salida para la madre que no quiere asumir la labor de crianza del menor y la aleja del punible de abandono
(Universidad Santiago de Cali, 2018) Cortes Antero, Ledi Jhovana; Jaramillo García, Gustavo Adolfo
The purpose of this text is to investigate the issue of the legal act of adoption as a way out for the mother who does not want to assume the task of raising the child, and how this behavior manages to move her away from the punish- ment of abandonment, indicating that many see adoption as a way through which a child is being given away; in order to determine how adoption is an alternative through which a child or adolescent can find better life chances in a family that has no inbreeding link. It is intended with this study, that the legal act of adoption is understood as a different way of accessing motherhood and paternity where a relationship of filiation is constituted symbolically that has the same transcendence in biological reproduction and that is intended to provide the restoration of the rights of children and adolescents without the woman suffering the social stigma because she is not a foster mother
Derecho de los hijos adoptados a conocer sobre su origen y vínculo familiar
(Universidad Santiago de Cali, 2019) Arango Ramírez, Adolfo León; Schaffler, Magdalena
The following research article seeks to analyze the right of adopted children and adolescents to know about their origin and family bond, which is currently regulated by Law 1098 of 2006 Code of Childhood and Adolescence, where all documents and administrative or judicial proceedings specific to the adoption process are reserved for the term of twenty (20) years from the execution of the judicial decision. In this order of ideas, he also tells us that it is the adoptive parents who will judge the moment and the ideal conditions in which it is not unfavorable for the child and adolescent, to know about their origin and family bond, without prejudice to the reservation of which it is stipulated in the aforementioned law. That is why it is proposed in this research, if in fact the adoptive parents are the best people to judge the right moment for the adopted child to have knowledge of their origin and family bond, analyzing which are the advantages and disadvantages of the minor having knowledge , taking into account that this means accepting that the child has a different origin and has a previous history linked to his life and his identity.
El límite a la materialización del derecho a tener una familia dentro del proceso de adopción en Colombia
(Universidad Santiago de Cali, 2020) Jaramillo Torres, Linda; Schaffler, Magdalena
This research work seeks to determine what are the limits on the materialization of the right to family that childrens have in Colombia in response to the adoption procedure determined by Law 1098 of 2006 and the provisions of reports of the Instituto Colombiano de Bienestar Familiar, considering children and adolescents as subjects of special protection by the Colombian State, and recognizing the best interest of the children for the safeguarding of their fundamental rights
La protección jurídica a la familia conformada por parejas del mismo sexo desde la constitución política de 1991 a la actualidad y sus repercusiones fácticas en el departamento del Valle del Cauca y el municipio de Cali
(Universidad Santiago de Cali, 2019) Nossa Saldarriaga, Carlos Alfonso; Bustos Romero, Michel Federico
The purpose of this work is to collect the necessary data to perform a complementary analysis of the rights recognized to families formed by same-sex couples in Colombia, in such a way that an updated and extended family concept can be specified that allows us to identify the gains and challenges that lie ahead, due to principles such as equality, personal self-determination, the free development of personality, individual integrity, freedom among others. This research is based on a qualitative methodology which proposes to carry out a legal and jurisprudential analysis by taking each of the milestone judgments and complementary laws concerning the subject of study; as it is the legal protection of families formed by same-sex couples from the Political Constitution of 1991 to the present, although the focal point of this investigation is Colombia, the department of Valle del Cauca and the municipality of Cali, It is convenient that we take a tour of international norms and agreements on the rights of homosexuals and their capacity to form families. This research is carried out through a qualitative analysis; We understand as primary sources the laws and judgments of constitutionality and guardianship of the Constitutional Court, and as a complementary source some research works already carried out, as well as articles from indexed journals, among other complementary academic texts for the analysis of the subject of study. As a result of the research work seeks to respond to the general objective, likewise, respond to issues that relate to the subsidiary questions, this is: Current concept of family, recognized rights to same-sex couples, mandatory constitutional precedent and its numerous pronouncements for its non-application, and finally the legitimacy of the Constitutional Court as creator of rights. Finally, we will then direct this work in a basic research because it seeks knowledge of reality or phenomena of nature, to contribute to a society increasingly advanced and that responds better to the challenges of humanity. Which does not actually seek the practical application of their discoveries, but the increase of knowledge to answer questions or for that knowledge can be applied in other investigations.
Revocabilidad excepcional de la adopción
(Universidad Santiago de Cali, 2019) Riascos Riascos, Honoris; Perea Bonilla, Hernel Jhuleicer
This article seeks to investigate and make an approximation to the evidence that supports the irrevocability of an adoption, which is the irrevocable nature of the adoption, which is the possibility of the revocability of the action, the cases in which it applies, that is to say in what cases it is necessary to revoke the adoption in order to guarantee that the fundamental rights are not violated to minors. It is important to effectively follow up or control the parents who adopt a child, in order to ensure that their fundamental rights are not violated after their adoption
Tensiones entre las garantías, derechos y obligaciones de la filiación por adopción de los niños, niñas y adolescentes en Colombia
(Universidad Santiago de Cali, 2019) Perlaza Daza, Lina Marcela; Schaffler, Magdalena
Adoption is the last measure contemplated by the constitution and the law for the protection and restoration of the rights of children and adolescents and is only generated after a long administrative process that culminates with the declaration of adoptability by the defender of family, in which Family Welfare acts as the central axis. However, this entire process for changing the child's filiation can in many cases culminate in the violation by the state itself of the rights it intended to protect, which is evidenced by phenomena such as high institutionalization.
Transformaciones jurisprudenciales sobre la adopción por parte de parejas del mismo sexo dentro del constitucionalismo colombiano
(Universidad Santiago de Cali, 2019) Quiceno Reyes, Rosa Elena; Schaffler, Magdalena
The present essay intends to carry out a jurisprudential analysis on the sentences of the Constitutional Court in which the path towards the recognition of the rights for same-sex couples to adopt children and adolescents in Colombia was forged. This jurisprudential development that has benefited the LGTBI community could not occur in other scenarios of greater democratic participation, such as the Congress of the Republic, and hence derives its legal importance, since the recognition of legal rights was given via of protection before the Constitutional Court. Thus, the stare decisis will be analyzed in a time line that accounts for the setbacks and triumphs that allowed to establish the state of things that the Court protects today.

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