LA JUSTICIA AUTORIZÓ A UN NIÑO A NO LLEVAR EL APELLIDO DE SU PADRE
La jueza provisoria del Juzgado de Familia, Niñez, Adolescencia y Violencia N° 3 de la primera circunscripción judicial, Ana Belén Villegas, autorizó la solicitud de un niño de suprimir el apellido de su padre.
“Lo más importante es que el niño siempre está en el centro, tiene que participar en cada una de las decisiones y saber lo que se opina”, señaló la magistrada.
La sentencia es de junio del 2022 y la jueza decidió hacer lugar al pedido del niño de suprimir el apellido paterno y consideró un motivo grave y suficiente el abandono del progenitor y su actitud pasiva ante la solicitud del menor.
Lo novedoso de la decisión es que la jueza se la comunicó al niño de manera clara y solicitó una audiencia virtual con él para explicarle los efectos del fallo.
La jueza comentó que su propósito era que el menor de edad pudiera contar algo más si así lo deseaba y agregó que por su timidez “le costaba hablar conmigo, le dije que yo le quería explicar la sentencia; el niño me escuchó, me dijo gracias, y le pregunté si había entendido los efectos de la sentencia y me dijo que si”.
Villegas agregó que, si bien siempre prefiere citar a la gente de manera presencial, en este caso como existía un problema de movilidad del niño fue más fácil comunicarse de manera virtual. “Hablé con el abogado que estaba muy contento y me dijo la mamá también quiere hablar con vos y entonces corrió la cámara y la señora se largó a llorar, me agradeció que escucháramos a su hijo y que tomáramos en cuenta su decisión”, contó.
“Yo me di cuenta que el niño realmente no quería llevar el apellido del padre, fue suficiente para mí, el justo motivo estaba en no sentirse identificado con el padre porque no había formado parte de su vida”.
El abogado que representó a la mamá y al niño, Marcelo Otamendi, expresó que se trata de un caso en donde el menor ha tomado mucha relevancia “como se lo merece” y destacó la actitud de la jueza y de todos los empleados del fuero familia “que a veces trabajan con lo que pueden y son muy comprometidos”.
“Es un cambio de paradigma, fue un expediente que lo vi muy difícil desde el principio y me pareció bien configurar el abandono como un precedente y que configura un abandono la cuota alimentaria impaga. Yo creo que ahí hay una herramienta que podemos utilizar los abogados en defensa de los niños”, indicó el letrado.
El mensaje de la jueza al niño:
En su comunicación con el pequeño, la magistrada le dijo:
“Hola, sé que no nos conocemos, porque no tuve el gusto de estar en la audiencia cuando vos hablaste y escuchar lo que tenías para decir, pero por suerte la charla con vos está grabada y la pude escuchar muchas veces.
Te quería contar que tuve en cuenta tu pedido de dejar de llevar el apellido de tu papá, y estudié mucho tu solicitud. Por ser un tema que tiene mucho que ver con tus sentimientos y llegué a la conclusión que lo que pedís es razonable, porque tus motivos son justos y no tienen que ver con lo que te pudieron decir las personas adultas cercanas, sino con lo que realmente vos querés.
Pero también quiero decirte que ser papá o mamá es un trabajo también y es difícil, y uno cuando es niño cree que la mamá y el papá hacen todas las cosas bien, pero ellos a veces también se pueden equivocar, y esperamos que lo puedan mejorar, porque me interesa que puedas crecer con un papá que te de mucho cariño, y que si tu papá no está con vos más tiempo o no lo conocés no es tu culpa.
Hay otra cosa que es importante que sepas: este cambio de apellido no significa que tu papá deja de ser tu papá, él lo va a seguir siendo y tiene el deber de darte lo que necesitas, y vos podés hablar con él para decirle lo que vos necesitas que te dé como papá.
También quiero decirte que más adelante, si así lo querés, podes ir al Registro y agregarte otra vez el apellido de tu papá.
Y como te dije, no nos conocemos, pero si querés conocerme para charlar, yo voy a estar para escucharte”.
En su fallo, Villegas consideró la importancia de oír al niño lo que implica considerarlo un sujeto capaz de decidir y que sus opiniones sean tomadas en cuenta.
Villegas marcó una diferencia entre el Código Civil viejo y el nuevo, ya que en el primero, el niño era un objeto y “vi miles de veces niños llorar porque no querían volver con la madre o niños llorar porque los obligaban pasar el fin de semana con el padre y no querían, y generalmente en ese momento a la justicia no le importaba ya que los padres decidían”. Actualmente “si el niño llora yo lo que quiero saber es porqué, es decir si un niño no quiere ver a la madre tiene que haber un porqué y tiene que ser grave por eso tengo muchas audiencias con niños/as”.
“Aunque el vínculo biológico es importante no es todo, entonces el apellido es importante porque hay un derecho a la identidad pero no refleja todo y es a lo que se apunta, a esta flexibilidad de los derechos y sobre todo de lo que quiere el niño; si el niño no se quiere llamar más así, por qué se lo voy a imponer”, dijo la jueza, y explicó que en la sentencia la jueza explica que tanto lo biológico como lo vincular son elementos muy importantes en el desarrollo de la personalidad de un niño/a y que en este caso prevaleció la falta de relación con el progenitor.
La jueza aclaró que “se cambia el apellido por una cuestión de nombre pero no se rompió el vínculo filiatorio con el padre, porque no se solicitó, es decir, el niño tiene derecho a exigirle la cuota alimentaria, sigue teniendo derechos hereditarios, incluso al tener una enfermedad, el niño puede pedir que se lo integre en la obra social y obviamente si quiere ver al padre también”. En definitiva, agregó que el apellido no hace al vínculo filiatorio y que se le explicó al niño “que el día de mañana, si él quiere volverse a poner el apellido paterno, lo puede volver a hacer”.
Fuente: Periódico Judicial.
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