104. Regarding the provisional custody decision, the representatives argued that “it was
neither objective nor reasonable.” In addition, they pointed out that the “judges assumed
that, in the case of lesbian women, living with a partner is a selfish interest that can only
provide well-being to the mother.”
105. For its part, the State argued that, in the context of a custody suit “a priority [is
established] in favor of the child’s best interest over any other protected interest in dispute,
[therefore] it is clear that in a custody proceeding it is necessary to understand the
aforementioned interest as strong grounds for justifying a change in [a child’s] regimen of
personal care.” Specifically, the State argued that “the judgment of the Supreme Court
found that the lower courts had incurred in serious fault or abuse by violating the rules for
the assessment of evidence, affecting the girls’ best interest.” Likewise, the State indicated
that in the provisional custody decision “the court declared […] that it is the task of the
sentencing body to safeguard a child’s best interest and ensure his or her greatest wellbeing […] and therefore it decided to grant provisional custody to the father.” Furthermore,
the State argued that “the decision on provisional custody, after assessing all the evidence
to date in the case [...] conclude[ed] that: i) the girls showed disturbances of a
psychological nature and emotional deficiencies […], and ii) that the father offered certainty
of an appropriate environment.”
106. The State argued that “as regards to the requirement of “suitability” to ensure that
the measures applied by States are not discriminatory, in order to comply with the scrutiny
test […] it would have been sufficient to have proven the harmful situation suffered by the
girls in the case.” Specifically, the State argued that “there is abundant evidence on record
proving: i) the specific adverse effects that the respondent’s expression of her sexual
orientation had on the well-being of her daughters, and ii) that the father offered better
conditions for their wellbeing, a matter in no way related to the defendant’s sexual
orientation.” The State also argued that “there is convincing evidence that the defendant
displayed an intensely self-centered attitude as well as personal characteristics that made it
difficult for her to properly exercise her role as a mother, circumstances that led to the
conclusion that the mother did not offer a suitable environment for the development of her
daughters.” Likewise, it stated that “there was abundant evidence on record, not only on
the negative effects that the respondent’s expression of her sexual orientation had on the
well-being of her daughters, but also on totally external circumstances, such as the
determination of whether the father or mother offered a better environment for the girls’
development and a greater degree of commitment and care toward them.”
Considerations of the Court
107. The Inter-American Court finds that, among its considerations, the Supreme Court of
Justice of Chile stated that “in all measures concerning [children] it is essential to consider
the child’s best interest over any other consideration and rights regarding their parents,
which could make it necessary to separate them from their parents.”120 For its part, the
Juvenile Court of Villarrica, in the provisional custody ruling, stated that “it is the sentencing
body’s task to ensure […] the child’s best interest, which implies conducting a preventive …
analysis leading to the ultimate purpose of any judicial ruling affecting a minor, which is
none other than seeking their greatest well-being.”121
120
Judgment of the Supreme Court of Justice of Chile of May 31, 2004 (record of appendices to the petition,
volume V, pages 2670).
121
Ruling on the provisional custody claim by the Juvenile Court of Villarrica, May 2, 2003 (record of
appendices to the petition, volume V, page 2566).
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