Navigating the Ecuadorian Family Court System for Child Custody Issues

As an expatriate living in Ecuador, particularly in the unique legal landscape of Cuenca, adapting to a new culture is often the easy part. When a relationship ends and children are involved, you face the far more complex challenge of navigating the Ecuadorian family court system. This guide is written from years of hands-on experience in the Juzgados de la Niñez y Adolescencia to provide you with the specific, actionable knowledge needed to protect your parental rights and your child’s future.

The cornerstone of Ecuadorian family law is the principle of the superior interest of the child (el interés superior del niño). This is not a vague guideline; it is a constitutional mandate that every judge must uphold. Understanding how this principle is applied in practice is critical to your case.

The Legal Foundation: Patria Potestad, Tenencia, and the Child's Best Interests

Ecuadorian law distinguishes between two key concepts: Patria Potestad (Parental Authority) and Tenencia (Custody/Physical Guardianship).

Patria Potestad refers to the collection of rights and duties parents have concerning their minor children and their property. In nearly all cases, both parents retain Patria Potestad jointly, regardless of who the child lives with. This includes major decisions about education, health, and religion.
Tenencia refers to the day-to-day physical care and responsibility for the child. This is what is commonly referred to as "custody."

The guiding legislation is not the Civil Code, but rather the Código de la Niñez y Adolescencia (CNA). Specifically, Artículo 106 of the CNA dictates the rules a judge must follow when deciding tenencia. The judge will meticulously evaluate which parent offers the best emotional stability, home environment, and capacity to meet the child's needs. The child’s own opinion will be heard and considered, typically from the age of 12, in a private meeting with the judge.

Understanding Custody Arrangements in Ecuador

Custodia Compartida (Shared Custody): While historically less common, shared custody is gaining significant traction in Ecuadorian courts. It requires a high degree of cooperation between parents. A judge will only grant it if it is demonstrably beneficial for the child and the parents have a viable plan for logistics, schooling, and co-parenting. It is not an automatic 50/50 split and is tailored to the family's reality.
Custodia Exclusiva (Sole Custody/Tenencia): One parent is granted primary physical care. The non-custodial parent is granted a visitation schedule (régimen de visitas) and is legally obligated to pay child support (pensión alimenticia). This is the default arrangement when parents cannot agree or live far apart. It is awarded based strictly on the child's best interest, not as a reward or punishment for a parent.

The Legal Process: A Step-by-Step Guide

Mandatory Mediation (Mediación): Before you can file a lawsuit, you are often required to attempt mediation at a center certified by the Consejo de la Judicatura. An Acta de Imposibilidad de Mediación (Certificate of Impossibility of Mediation) is often a prerequisite (requisito de procedibilidad) to file your claim in court. If you reach an agreement, the Acta de Mediación has the same legal force as a judge's ruling (sentencia ejecutoriada).
Filing a Petition (Demanda de Tenencia): Your attorney will file a formal demanda at the appropriate Family, Children, and Adolescents Court (Unidad Judicial de Familia, Mujer, Niñez y Adolescencia). This document, drafted in Spanish and compliant with the Código Orgánico General de Procesos (COGEP), outlines your request and presents the foundational facts.
Psychosocial Evaluation (Informe Psicosocial): This is a crucial, non-negotiable step. The court's technical office (oficina técnica), composed of a psychologist and a social worker, will conduct interviews with both parents and the child. They will also conduct a home visit. Their resulting report carries immense weight with the judge. A common mistake is treating this evaluation casually; prepare for it as you would for court testimony. The cost for a court-ordered private evaluation (peritaje) by an accredited expert can range from $250 to over $500, a fee often split between parties.
The Hearing (Audiencia Única): Under COGEP, the entire case is typically resolved in a single, two-part hearing.
- Part One: The judge attempts reconciliation. If that fails, evidentiary issues are settled.
- Part Two: Evidence is presented, witnesses testify, and both parties make their final arguments. The judge often delivers their verbal ruling at the end of this hearing.
The Ruling (Sentencia): The judge's final written decision will detail the custody arrangement, a specific and mandatory visitation schedule, and the amount of child support.

Child Support (Pensión Alimenticia) - A Critical Component

Custody cannot be discussed without addressing child support. This is not optional.

The SUPA System: All payments must be made through the Sistema Único de Pensiones Alimenticias (SUPA). You will be assigned a specific code, and payments are deposited into a designated bank account. Direct, informal payments are not legally recognized and can result in you being listed as delinquent.
The Official Table: The amount is not arbitrary. It is calculated based on the Tabla de Pensiones Alimenticias Mínimas, which is updated annually via an Acuerdo Ministerial from the Ministerio de Inclusión Económica y Social (MIES). The table cross-references the non-custodial parent's income level with the number and ages of the children.

Essential Documentation for Expats

Be prepared. Gathering documents is often the most time-consuming part of the process.

Child's Birth Certificate: An updated, certified copy (partida de birth íntegra) from the Ecuadorian Registro Civil.
Parent's IDs: Passports and/or Ecuadorian cédulas.
Proof of Income: For child support calculations.
Foreign Documents: Any document from outside Ecuador (birth certificates, marriage licenses, prior court orders) must be apostilled in the country of origin. Once in Ecuador, it must be translated into Spanish by a court-certified translator (traductor jurado), not just any bilingual person. A common error at the Azuay Justice Complex in Cuenca is presenting a simple translation, which leads to immediate rejection and delays.

Critical Expat Pitfalls to Avoid

"Verbal Agreements": A handshake agreement on custody or visitation is legally worthless in Ecuador. If it's not in a notarized agreement, a mediation certificate, or a judge's ruling, it is unenforceable.
International Travel Assumptions: You cannot leave Ecuador with your minor child without the other parent's explicit, notarized permission, known as a Permiso de Salida del País. If the other parent refuses, you must obtain a judge's permission. Attempting to leave without this is a serious crime and can result in you being barred from exiting the country at the airport.
Ignoring the SUPA System: As mentioned, paying child support in cash or to the other parent's personal account provides you no legal protection. Use the SUPA system exclusively.
Underestimating Language and Culture: All proceedings are in Spanish. The nuances of legal arguments and judicial expectations are deeply rooted in Ecuadorian culture. Relying on an online translator or a friend is a recipe for disaster. Hire qualified legal counsel who is fluent in both languages and cultures.

⚠️ Legal Alert: When to Immediately Consult an Attorney

Stop and seek legal counsel immediately if:

The other parent threatens to leave Ecuador with your child.
You are served with a citación (official legal summons) for a custody or child support hearing. You typically have only 15 days to formally respond.
There are any allegations of abuse or neglect.
You and the other parent cannot agree on a parenting plan and need to formalize one.
The other parent is denying you contractually or legally mandated visitation time.

Navigating this process is challenging, but not impossible. The system is designed to protect children, and with proper preparation and expert guidance, you can achieve a fair outcome that preserves your relationship with your child.

As an attorney practicing in Cuenca, I have guided numerous expats through this exact process. If you are facing a family law matter, schedule a consultation to understand your specific rights and create a clear strategy for your family's future.