The obligation of maintenance includes the satisfaction of needs of minors in respect of maintenance, education, entertainment, clothing, housing, relief, sickness expenses and expenses necessary for the acquisition of a profession or trade.
The duty of food is an obligation included in the Civil and Commercial Code of the nation, and precisely the benefit of food arising from the parental responsibility, the purpose of which is the overall protection of children and adolescents.
And as we say, it mainly falls on both parents, whose main duties are to take care of minors, live with children, provide them with food and educate them, taking into account their specific needs according to their psychophysical characteristics, abilities and development of maturity.
According to Article 638 of our nation’s Civil and Commercial Code, parental responsibility, formerly called Patria Potestad, is a set of duties and rights that correspond to parents over the person and property of the son or daughter for their protection, development and overall education, while a minor and not emancipated.
When we talk about food in Argentina, we have in mind a matter of basic human rights included in the National Constitution of 1994, in Article 75, paragraph 22:
The Universal Declaration of Human Rights in its Article 25 states: “Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, and in particular to food, clothing, housing, medical care and necessary social services; You are also entitled to insurance in the event of unemployment, illness, disability, widowhood, old age or other cases of loss of livelihood due to circumstances beyond your control.
2. Motherhood and childhood have the right to special care and support. All children born in wedlock or out of wedlock are entitled to equal social protection.”
Similarly, Article 27 of the Convention on the Rights of the Child states: “States Parties recognize the right of every child to a standard of living adequate for his physical, mental, spiritual, moral and social development. 2. The parents or other persons responsible for the child have the primary responsibility to ensure, within their capabilities and financial means, the necessary living conditions for the development of the child. 3. States Parties shall, in accordance with national conditions and within their capabilities, take appropriate measures to assist parents and other persons responsible for the child to realize this right and, if necessary, provide material assistance and programs for support, especially in terms of food, clothing and housing. 4. States Parties shall take all appropriate measures to ensure the payment of maintenance by the parents or other persons who bear financial responsibility for the child, regardless of whether they live in the State Party or abroad. In particular, where the person with financial responsibility for the child resides in a State other than that in which the child resides, States Parties shall encourage adherence to or the conclusion of international conventions and the conclusion of any other appropriate arrangements. “
In this order of things, food is an obligation, not an ability, since the need for food in relation to minors is assumed.
In principle, the maintenance obligation arising from parental responsibility does not require proof of the dependent’s needs.
And its goal is family solidarity.
And then we wonder who is responsible for providing food?
In the first place, the parents are obliged either how the family is made up, or in a traditional way with a mother and a father, or two fathers or two mothers, or how the family is made up.
It is important to note that the Inter-American Court in the case “Átala, Rifo and girls vs. Chile”, dated 02/24/2012, emphasizing that “the American Convention does not define a closed concept of family, much less protects only a ‘traditional’ model of it”. The concept of family life “is not limited to marriage alone and must include other de facto family relationships where the parties have a life together outside of marriage” (Atala, Rifo and Girls v. Chile, 24/02/2012 (paragraph 142)).
What happens when people who have a family relationship decide to separate and minors need to be fed?
In the case of separation or divorce, the parents must agree to determine the maintenance quota for the minors by means of an agreement between the parties, which is then formed and becomes a judgment.
What if the parties cannot reach an agreement?
The maintenance claim must be filed in the family court of the minor’s place of residence, i.e. his or her center of life, and in the particular case the judge will take into account the needs of the minors and the economic capabilities of each parent.
How can the food be paid for?
It can be composed of monetary benefits, that is, the provision of money or in kind, and is proportional to the economic capabilities of the debtors and the needs of the people who are fed.
And what is the parameter that should be considered by the person who has to feed?
In order to determine the amount of maintenance, in the case of minors, the economic income of each parent must be taken into account, the age of the minors, since the cost of raising them often depends on their age, the cost of food and also education, since it depends on the level of education you’re going through, whether it’s primary, secondary or whether you’re going to university, whether it’s a public or private institution, including transport and learning materials, if they have any degree of physical or mental disability, take into account housing and rest.
In most cases, if the obligee has a bonus to the salary, the meal or subsistence charge is between 20% and 30% of the income and includes bonuses, awards, annual bonuses.
What if he or the supplier does not have a permanent job, or has sporadic jobs, or is out of work?
In this case, it can be requested in the request for food, as a subsidiary way to the grandparents of the minors and that this request be presented to the Family Court corresponding to the address where the minor resides, through a lawyer / or latrocination.
According to Article 668 of the Civil and Commercial Code, it expresses: Ancestral maintenance may be claimed in the same process in which the parents are tried or in a different process, in addition to what is provided for in the title of kinship, the hardship must be credible proved. to the perpetrator to receive food from parental obligations.
And why must the parent’s inability to comply be credibly proven?
First, because being a father or mother is not the same as being a grandparent, and the grandparent’s duty only comes into play in the event of the foster parent’s non-compliance or inability.
In case the grandparents are deceased, the rule allows bilateral or unilateral siblings to claim maintenance in a subsidiary manner, that is, the minors’ uncles or aunts.
And what should be done when there is a claim for maintenance and the judgment obliges the obligee to comply, but he does not?
Lawyers, as long as the affected party requests it, proceed to do what is technically called maintenance.
And what does it mean to execute forced food?
In the first place, the debtor who does not receive child support can be sued by the other parent on behalf of his child, also the child with a sufficient degree of maturity with legal aid and, in the second place, any of the relatives or Public Service.
That said, in enforcement, the highest active rate charged by the banks to their customers, plus another additional rate that doubles the first, was ordered to be applied to the debt claimed.
And it is important to note that the unpaid meals will also be included in the Register of overdue debtors, as well as the seizure of wages or certain items, which is a precautionary measure to repay the obligation.
Decisions of judges and magistrates have been issued for non-conformity of food.
Thus, taking the province of Córdoba as an example, a fan of Belgrano de Córdoba will not be able to enter the ground to see his team or leave the province for not meeting the food quota for his son under the age of 7.
This decision was taken by the Family Court of the Sixth Nomination of Córdoba, which prevented the man from having access to any sporting event.
In the decision, the magistrate highlighted … the parent’s disengagement from his duties as a legitimate breadwinner and his lack of interest in his son’s well-being. And he stated in his judgment that this is a basic human right for which it is appropriate to seek alternatives to ensure effective compliance with the food quota, always within reasonable…
Justice was also issued, suspending those who do not comply with their driver’s licenses and the inability to apply for credit cards and loans.
Law 13944 tells us about the crime of failure to comply with family support obligations, which, among other articles of the norm, is punishable by imprisonment and a fine, even without a civil sentence, for parents who fail to provide the indispensable means of support for your child under 18 years or older if disabled.
How long does the debtor have an obligation to his sons or daughters?
The responsibility to pay the child support fee extends until the age of 21, unless the obligee proves that the adult child has sufficient means to provide for it alone.
However, if the son or daughter continues to study, the obligation continues until the age of 25, as child support by law is intended to meet their educational needs as well.
Law 26061 on the comprehensive protection of children and adolescents in the name of the best interests of the child states:
To respect their status as subjects of law;
The right of children and adolescents to be heard and their opinion taken into account;
Respect for the full personal development of their rights in their family, social and cultural environment;
Your age, level of maturity, discernment and other personal circumstances;
The balance between the rights and guarantees of children and adolescents and the requirements of the common good;
Your center of life. The center of life is understood as the place where children and adolescents have spent most of their existence in legal settings.
Dr. Marisa Herrera, commenting on the maintenance obligation in Chapter 5 of the nation’s Civil and Commercial Code, states: “Children and adolescents are the bearers of these common rights, such as leading a dignified life or fully developing their personality, but, in addition , due to his particular position of vulnerability, he is recognized the right to additional protection”.
To deprive people of their human rights is to question their very humanity.
Doctor Sofia Burado
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