The new Family Code provides the fathers with rights that were exclusively of the mothers.
Osniel Benítez Hernández remembers when 16 years ago the mother of her daughter agreed to leave their then ten-month-old daughter in her care so she could finish college, she only gave him one condition: that he had to be the one to do everything for the baby.
PINAR DEL RÍO.- Osniel Benítez Hernández remembers when 16 years ago the mother of her daughter agreed to leave their then ten-month-old daughter in her care so she could finish college, she only gave him one condition: that he had to be the one to do everything for the baby.
“And so it happened. During that time, I learned to change her diapers, bathe her, comb her hair and feed her. If I had to get up at midnight for some reason, I did it,” he says, and his memories fly back to those distant days in 2006, when he learned to be a father.
Osniel had just graduated in Havana and he thought that that time when the mother of his daughter would be finishing her studies –interrupted by the last stage of her pregnancy and the birth of the child – would be the only time he would have to share full time with the little girl, who was conceived outside what is considered a traditional family, that is, out of wedlock.
So, Osniel devoted himself to the care of the little Rosy Jade down to the smallest details.
In order to keep his job as a teacher at the Provincial School of the Pinar del Río Party, he started the arrangements for the children’s daycare center.
“That’s when I found out that the spots were only given to working mothers, and that they did not comprise a situation like mine.
“I had to explain over and over again in Education that the child lived alone with me, that I needed it to be able to work. They finally accepted my case because they had never seen a father knock as many doors and go to so many places as I did.”
A year later it would be time to take the baby to Matanzas to be reunited with the mother, who had already finished college, but the ties with Rosy Jade would continue to grow stronger and stronger.
“From that moment on, the little girl would spend two or three months there and two or three months here.”
He says that during that time the little girl fell ill several times with pneumonia, and the doctors were of the opinion that it was due to the microclimate of the place where she lived in Matanzas. So, when she was five years old, he brought her to live full time with him in Pinar del Río.
“Here she attended preschool and first grade. Everything indicated that it was true about the climate, because she never got sick again,” recalls Osniel Benítez.
She would later return to Matanzas to attend the third and fourth grades. “Since she started school, if she was with me, I took her to her mother’s house during the summer, December and April holidays. And when she was there, we did the other way around.”
At the age of 11, after living alternatively with both parents, the girl stayed with him for good.
Osniel Benítez thinks that this is the result of having dedicated so much time to her since she was a child and of the excellent relationship that has existed with her mother.
However, he recognizes that his story is unusual, and that often the children end up paying the price for the disagreements between their parents.
This is a matter that not infrequently ends up in court, where, in general, the custody and care of the children is awarded to the mother.
THE BALANCE TOWARDS THE MOTHER’S SIDE
Doctor in Legal Sciences Nileidys Torga Hernández, senior lecturer in Family Law at the Hermanos Saíz Montes de Oca University in Pinar del Río, explains that even though the principle of equality between men and women – taken to the family level in terms of the equality of spouses or parents – is recognized in the Constitution and in the Family Code in force, there are articles in the same body of law that are not in line with the principle of equality, that end up leaning in favor of the mother in certain conflicts related to the exercise of parental authority over her children.
For example, Article 89, which sets out the rules to be followed by the court hearing the case, at the time of conferring the custody and care of the children, prefers the mother in case of equality of conditions between both parents.
Beyond the law, Nileidys Torga considers that “this is something that is accentuated by the practical practice of law, since judges, at the time of deciding a case, always have a tendency to favor the mother or identify more with the maternal position, to the detriment of the paternal”.
This opinion is also shared by Maidalmys Alvarez Hernandez, head of the group of Attention to the Citizen, Family and Constituency Affairs in the Municipal Prosecutor’s Office of Pinar del Rio.
“Certainly, this is what has been done to date. Generally speaking, the guardianship and care of the mother in practice usually falls to the mother,” she says.
“Sometimes, in the investigations, we see that the father is more concerned about the child’s things, that he has better conditions to take care of the minor, not only from the economic point of view, but also in terms of physical or psychological aptitudes and, even so, the mother is prioritized.
“It acts as an unwritten law in society and the court tries to safeguard that right that is granted by the mere fact of giving life until the last moment,” adds the specialist- “Only when the mother has a very negative attitude, the scale tilt to the other side, but she is generally the privileged one,” she warns.
She even considers that the lawyers who represent the fathers almost always think that this will be the case, and go to the proceedings asking for the communication regime and not the custody and care of the child.
The new Family Code – which will be submitted to popular referendum on September 25 – proposes a better balance between the roles, responsibilities, duties and rights of the father and the mother, explains the main professor of Family Law at the University of Pinar del Río.
“A very clear example has to do with the exercise of guardianship and care, which is one-sided so far. That is to say, it is only granted to the mother or the father, in case of split or divorce,” details Nileidys Torga.
The specialist comments that the new Code also envisages the option of shared guardianship and care. In other words, the child can be with the mother and the father for certain periods of time, or move between the paternal and maternal homes depending on the context and the environment.
In addition, it favors an open communication regime, and instead of setting specific periods, it proposes frequent participation.
“For example, in the practical practice of law, it is very common to read in the sentences that the father may visit the children as long as this does not affect the hours of rest, feeding or others that are indispensable for the child’s development, as if his presence could threaten the child’s sleep time or if it would be a difficulty if he is present during their feeding,” says the Doctor in Legal Sciences.
“These are issues that are eliminated in the new Code of the Families, and the Law operators are called to overcome these conceptions,” she adds.
In the introduction of these changes, she points out that several aspects have influenced: “In the first place, the regulations of comparative law, which show that at the international level there is a tendency in the norms to have an equal participation of fathers and mothers in the upbringing and education of children.
“Also research of different sciences such as psychology, sociology and law, have shown the importance of the father figure in the education of children, which is in the same day as the maternal figure.
“Moreover, practice has shown that the father usually comes demanding to have more participation. And if we are saying that this is an inclusive Code, which perceives and pays attention to the rights of all, it would be unfair to leave out the demands of those men who are fighting for greater recognition in the upbringing and education of children.”
For Osniel Benítez, who has been breaking stereotypes with his example and his dedication for 16 years, it is very positive that the new Family Code has raised these issues, in order to overcome the gaps left by the current Code.
“Life has shown that we are also in a position to care for our children, and to do so with the same willingness and the same love.”