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Latin American Law. Confronting Codified Sexism Chile. Last updated 08 Nov 10. Schedule. 21-Nov Legal education in LatAm  23-Nov VIRTUAL FRIDAY 28-Nov Oquendo 30-Nov Assignment 28 (corporate law) 5-Dec Visit with Prof Oyarce (Peru) 7-Dec Visit with Prof Reyes ??? .

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schedule
Schedule
  • 21-Nov Legal education in LatAm 
  • 23-Nov VIRTUAL FRIDAY
  • 28-Nov Oquendo
  • 30-Nov Assignment 28 (corporate law)
  • 5-Dec Visit with Prof Oyarce (Peru)
  • 7-Dec Visit with Prof Reyes ???
today s topics
Today’s topics
  • Sexism in Chilean civil code (1857)
    • Presumption against paternity – father must confess
    • Illegitimate children come from “depraved ways”
  • Reform of Chilean civil code (1998)
    • Pleading burden in paternity suits: “sufficient antecedents to render alleged facts plausible”
      • Baez Sierra: mere pleading of paternity insufficient
      • Espinoza Gonzalez: attaching mother’s affidavit insufficient
    • Presumption for mother in child custody suits
      • Carracedo Alvarado: “best interests of child”
value of knowing other legal systems
Value of knowing other legal systems
  • Model for borrowing
  • Gain perspective
  • Discover truths
  • Impose / power

Legalized sexism?

chile s classic sexism

Article 271: “The alleged child’s action [to be considered natural descendant of father] must be based on a public or private instrument in which the father or the mother confesses to paternity or maternity.”

Chile’s classic” sexism …

How could merely carnal, dubious, and random intercourse, which can in no way guarantee the faithfulness of the degraded woman, establish legitimacy if there has been no corroboration by the father?

Andres Bello

(1781-1865)

slide6
Some Chilean Data

1990 study (Chile)

  • "women should obey their husbands" M – 55% agree W – 40% agree
  • "men should participate more actively in housework so that women are able to work“M – 70% agree W – 92% agree
  • Divorce and separation rates
    • 0.38 divorces per 1,000 persons (cf US = 5 per 1000)
    • 8 separations per 1,000 persons (highest in LatAm)
  • Of nation's 748 judges – 48% women (1991)
reform of bello s code
Reform of Bello’s code …

More than 10% of Chilean babies do not have legally recognized fathers and half of children are born out of wedlock

slide8
Civil Code (rev. 1998)

Article 196: “The judge shall accept the complaint [regarding an investigation into paternity or maternity] only if it includes sufficient antecedents to render the alleged facts plausible.”

meet pleading standard
Baez Sierra(Chile Sup Ct 2002)

Birth certificate

Complaint allegations

Espinoza Gonzalez

(Chile Sup Ct 2002)

Birth certificate

Document verifying father’s appearance before Juvenile Court

Notarized sworn statement of mother

Meet pleading standard?
slide10

Obviously, such an

assessment should not amount

to an a priori pronouncement on the evidence

that will be introduced and examined at trial; yet it

should not involve the acceptance of any antecedent

whatsoever or of any unfounded affirmation by the

plaintiff either. According to the law, the antecedent must

make plausible or acceptable the facts that underlie the

complaint. In other words, it must directly bear upon the

account that the plaintiff offers to support of her claim.

We cannot agree that she thereby renders her complaint

plausible. Otherwise, we would have to accept as

plausible any complaint accompanied by this

kind of document. This conclusion does

not comport with the statute's

mandate.

Baez Sierra

Espinoza Gonzales

Antecedent: birth certificate and notarized sworn statement

Antecedent:

official copy

of the birth

certificate

[student]

slide11

Complaint

[allegations]

How prove paternity?

Birth

certificate

Uniform Parternity Act

NCGS 49-14

“Clear, cogent, convincing evidence”

Father’s

sworn

confession

Changed attitudes

Winslow Taylor

Mother’s

affidavit

Witness

affidavit

NCGS 8-50.1

“criminal/civil case … blood tests … evidence … taxed as costs”

DNA tests

(2005 law)

ncgs chapter 49 bastardy
NCGS Chapter 49 (Bastardy)

§ 49‑14.  Civil action to establish paternity.

(a)        The paternity of a child born out of wedlock may be established by civil action at any time prior to such child's eighteenth birthday.

(b)        Proof of paternity pursuant to this section shall be by clear, cogent, and convincing evidence.

(f)         When a determination of paternity is pending in a IV‑D case, the court shall enter a temporary order for child support upon motion and showing of clear, cogent, and convincing evidence of paternity. For purposes of this subsection, the results of blood or genetic tests shall constitute clear, cogent, and convincing evidence of paternity if the tests show that the probability of the alleged parent's parentage is ninety‑seven percent (97%) or higher. If paternity is not thereafter established, then the putative father shall be reimbursed the full amount of temporary support paid under the order.

(g)        Invoices for services rendered for pregnancy, childbirth, and blood or genetic testing are admissible as evidence without requiring third party foundation testimony and shall constitute prima facie evidence of the amounts incurred for the services or for testing on behalf of the child.

baez sierra 2002
Baez Sierra (2002)

Preview: Procedural history

Considerations:

  • Plaintiff argues
  • Issue: pleading standard?
  • Purpose of pleading standard
  • Dictionary definitions of code terms
  • Birth certificate not enough
  • Holding: judge could not allow action
  • Procedure OK: ex proprio motu
  • Reject cassation appeal

Resolution: Reject cassation appeal

baez sierra 20021
Baez Sierra (2002)

Preview: Procedural history

Considerations:

  • Plaintiff argues
  • Issue: pleading standard?
  • Purpose of pleading standard
  • Dictionary definitions of code terms
  • Birth certificate not enough
  • Holding: judge could not allow action
  • Procedure OK: ex proprio motu
  • Reject cassation appeal

Resolution: Reject cassation appeal

sources of law

Sources of law …

Constitution

Legislation

Legislative history

Jurisprudence

Doctrine

Custom

Public policy

paternity and protection of children

Paternity andprotection of children …

Constitution vs.

international Treaty

Jim Rodden

slide18

Children from Fatherless Homes Account for:

63%

of youth suicides

US Dept. of Health & Human Services, Bureau of the Census

71%

of pregnant teenagers

US Dept. of Health & Human Services

90%

of all homeless and runaway children

70%

of juveniles in state-operated institutions come from fatherless homes

U.S. Dept. of Justice, Special Report, Sept 1988

85%

of all children that exhibit behavioral disorders

Center for Disease Control

80%

of rapists motivated with displaced anger

Criminal Justice & Behavior, Vol. 14, p. 403-26, 1978

71%

of all high school dropouts

National Principals Association Report on the State of High Schools

of all adolescent patients in chemical abuse centers

75%

Rainbows for all God`s Children

85%

of all youths sitting in prisons

Fulton Co. Georgia jail populations, Texas Dept. of Corrections 1992

Children from Fatherless Homes Account for:

decide the case
Decide the case …
  • Alexis Angelino
  • 1988 – born to married parents
  • 1989 – goes to live with father
  • 1996 – mother sues for custody
  • 1996 – Juvenile Court accepts complaint
  • 2000 – Appeals Court affirms
  • 2001 – Juvenile Court grants custody to mother
  • On appeal:
    • Evidence of mother’s domestic violence
    • Psychiatric reports on mother’s mental health
    • Mother handed over Alexis due to her immaturity
    • Father has emotionally abandoned Alexis
    • Alexis expresses preference for father
compare to prior chilean standard is this best interests of child standard
Compare to prior Chilean standard?Is this “best interests of child” standard?

Art. 225 “… the mother will take personal charge of the children’s care … both parents may mutually agree to assign personal care of one or more of the children to the father … the judge may designate the other parent to care for the child, if the minor’s interest so demands in cases of abuse, neglect, or other reasonable cause.”

Jim Rodden

slide23
More Chilean Data

2005 study (Corporation Humana and the University of Chile’s Institute of Public Affairs)

  • 87% of women felt that they suffered discrimination
  • 95% of women believe that women face discrimination in the labor market
  • 67% believed that they faced discrimination in politics [consider Michelle Bachelet].

Bianca Hudson

Rich McPherson