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Queja motion and no innovar order in the Atala´s case

Authors

  • Juan Carlos Marín González Investigador del Centro de Estudios de la Justicia. Facultad de Derecho. Universidad de Chile
No. 15 (2011)
https://doi.org/10.5354/rej.v0i15.29482

Abstract

The article criticizes the Supreme Court's ruling by which it accepted a claim lodged through a Queja motion, granting the definite custody of Karen Atala's daughters to their father. In author's opinion, the only reason why the aforementioned ruling deprived the mother of the children's custody is due to her homosexuality. The decision is not only openly discriminatory because of the aforesaid cause, but for using the Queja motion, a motion which was not envisaged for that purpose. Through the Queja motion the Supreme Court was not allowed to alter de valuation of proof, for this power has always been granted in an exclusive manner to first instance judges. In addition, the author questions the abusive use of the no innovar order, which instead of maintaining the statu quo that favored the mother, altered it in a dramatic manner and impeded the fulfillment of the two former rulings which had rejected the custody claim lodged by the father, keeping, in an artificial way, the provisional custody of the children with the father.    

Keywords:

Homosexuality, discrimination, provisional remedies, gender

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How to Cite
Marín González, J. C. (2011). Queja motion and no innovar order in the Atala´s case. Revista De Estudios De La Justicia, (15), pp. 265–284. https://doi.org/10.5354/rej.v0i15.29482
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Revista de Estudios de la Justicia
Facultad de Derecho
Universidad de Chile
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