LEGAL GUARDIANSHIP OF MINORS IN BOLIVIA: REQUIREMENTS, TYPES, AND HOW TO PROCESS IT STEP BY STEP
The legal institution of guardianship in Bolivia was formally established nationwide with the enactment of Law No. 1403, the Juvenile Code, on December 18, 1992. This law established, for the first time, this legal mechanism aimed at the comprehensive protection and family life of minors. Before this specific law, the protection of minors throughout the country was handled through the “Bolivian Council for Minors” (CONAME), created in 1960, which was the main state body responsible for centralizing social assistance policies, orphanages, and substitute homes for abandoned or orphaned minors, or minors in conflict with the law.
Currently, under Law No. 548, the Children and Adolescents Code of Bolivia, legal guardianship is a legal institution of a provisional nature that provides for the care, protection, attention, and comprehensive assistance of a minor within the national territory.
Definition and characteristics. -
Provisional nature: It is granted by means of a temporary judicial decision without affecting the original parental authority of the mother or father.
To whom it may be granted: It may be granted to the mother or father in cases of separation or divorce, or to third parties (such as grandparents or aunts and uncles) when the parents are unable to provide the respective care.
Duties of the guardian: The guardian must safeguard the minor’s interests in dealings with third parties and arrange for the necessary family support.
Main requirements.-
To exercise guardianship, a person must:
Be of legal age.
Be in good physical and mental health, as evidenced by a medical certificate and a psychological evaluation issued by the Departmental Technical Office for Social Policy.
Have a social assessment report issued by the Departmental Technical Office for Social Policy.
Have no final and enforceable conviction for intentional offenses against the life or physical integrity of persons.
In addition, if the child or adolescent is of sufficient age and maturity, they must be heard before the judge makes a decision.
Key aspects of the procedure.-
Best interests of the child: The minor’s overall well-being is always assessed, and the minor’s opinion must be taken into account before the guardian is determined.
Monitoring: The Ombudsman’s Office for Children and Adolescents carries out the control and monitoring of the measure.
Restrictions: The guardian requires judicial authorization and authorization from the Ombudsman’s Office for Children and Adolescents if they wish to change residence or travel with the minor.
Under Article 58 of Law No. 548 (Children and Adolescents Code), two classes or forms of guardianship are formally established in Bolivia: Ley N.º 548
Guardianship Following Family Separation. -
Scope: This type applies specifically in cases of divorce, separation, or the dissolution of free marital unions.
Competent authority: It is granted by a Public Judge with jurisdiction in family matters, under the rules of the Family Code (Law No. 603).
Forms of allocation between the parents: Within this type of guardianship, the judge or the parents may agree on two arrangements:
Exclusive (Unilateral) Guardianship: Daily care and residence are entrusted to only one parent, while the other retains the right to a visitation arrangement and the obligation to provide family support.
Joint Guardianship: Both parents assume equal shared responsibility for raising the children. Alternating periods of residence with the children are established, requiring mutual agreement and effective communication.
Guardianship Granted by the Judge for Children and Adolescents.-
Scope: It applies when the minor cannot remain in the care of either parent due to special circumstances (abandonment, risk, abuse, or temporary incapacity).
Competent Authority: It is ordered exclusively by a Public Judge with jurisdiction over Children and Adolescents.
Recipients: It is granted to a third party who does not have original legal custody of the minor (such as grandparents, aunts and uncles, older siblings, or other trusted relatives).
Common principles of guardianship: Regardless of the type of guardianship established, Law No. 548 provides that:
Provisional nature: guardianship is a protective measure of a provisional nature; it is not equivalent to adoption and does not, by itself, terminate the authority of the biological parents (unless there is a prior judgment suspending or terminating such authority).
Duration: it remains in effect while the suspension or termination of parental authority is determined; if the minor has no identified parents, guardianship may be granted to third parties.
Prohibitions: a person who has guardianship may not transfer it to a third party under any circumstances.
Revocation: it may be revoked by judicial decision, either ex officio or at the request of a party, after reviewing reports and hearing the minor.
In summary, the main characteristic of legal guardianship in Bolivia is to safeguard the best interests of the child or adolescent, as provided in Article 60 of the Political Constitution of the State. It is provisional in nature, since it does not terminate parental authority. It imposes duties on the guardian aimed at ensuring the comprehensive development of the child or adolescent. A person seeking to become the legal guardian of a minor must meet the requirements established by Article 59 of Law No. 548, including being of legal age, being in good physical and mental health, undergoing biopsychosocial assessments before the Technical Office for Social Policy of the Autonomous Departmental Government of Santa Cruz, and having no final and enforceable conviction for offenses against the life or physical integrity of persons. If the applicant demonstrates that they are qualified to serve as the legal guardian of a minor, the Judge for Children and Adolescents will grant them the right to care for the minor. Legal guardianship remains in effect until the situation concerning the suspension of parental authority is determined. Since it is granted upon request, it may not be transferred to another person without the proper revocation of the judicial decision.
When guardianship of a minor follows a family separation resulting from the parents’ separation, the Public Family Judge determines, after the applicable requirements have been met, whether the minor will remain in the care of the mother or father. This type of guardianship is governed by Law No. 603, the Family Code. It may be exclusive, in which one parent assumes care unilaterally and the corresponding family support must be required, or joint, which is established according to rules agreed upon and verified by the Family Judge to regulate the minor’s residence and development.
At Diaz Abogados Law Firm, we have the experience to help ensure the success of your legal guardianship proceedings.
Miguel Ángel Gutiérrez Suarez
Criminal Defense Lawyer
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