De la autoridad parental a la responsabilidad parental: evolución

jurídica y desafíos para la protección de los niños

J. Law Epistemic Stud. (2026) 4: e180

https://doi.org/10.5281/zenodo.21208915

ISSN 3091-1575

RESEARCH ARTICLE

From parental authority to parental responsibility legal evolution and

challenges for the protection of children

 Alfredo A. Chilembelenbe-Seyungo

alfredo[email protected].ao

Universidade Internacional do Cuanza, Angola.

FUNIBER, España

Received: 25 May 2026 / Accepted: 20 June 2026 / Published online: 30 June 2026

Alfredo A. Chilembelenbe-Seyungo Rosária L. Correia-Dumbo Eunice N. Martins-Chipululo

Luís Calei-Brito Alberto K. Kavinda-Canjamba

Abstract The transformation of Family Law over recent decades

has profoundly redened the traditional concept of parental author-

ity, shifting from a model based on parental prerogatives to one

centred on parental responsibility and the comprehensive protec-

tion of children’s rights. This study aims to examine the legal evo-

lution of liation and parental authority from a historical, compara-

tive and human rights perspective, identifying the main challenges

arising from the transition towards parental responsibility within

Latin American legal systems. A qualitative legal methodology was

adopted, combining doctrinal, normative, jurisprudential and com-

parative analysis. The review included national legislation, inter-

national human rights instruments, case law of the Inter-American

Court of Human Rights and specialised scientic literature pub-

lished between 2020 and 2026. The ndings reveal a progressive

trend towards replacing the traditional concept of parental authority

with parental responsibility, understood as a legal function guided

by the best interests of the child, shared parental responsibilities and

respect for the child’s evolving capacities. Nevertheless, signicant

challenges remain regarding assisted reproduction, socio-aective

liation, diverse family structures and legislative harmonisation

across Latin America. The study concludes that consolidating the

parental responsibility paradigm requires a reinterpretation of tra-

ditional Family Law institutions in accordance with international

child protection standards.

Keywords liation, parental responsibility, parental authority, best

interests of the child, children’s rights.

Resumen La transformación del Derecho de Familia durante las

últimas décadas ha redenido profundamente la concepción tra-

dicional de la patria potestad, desplazando un modelo basado en

prerrogativas parentales hacia otro centrado en la responsabilidad

parental y la protección integral de los derechos de niños, niñas y

adolescentes. El objetivo de este estudio es analizar la evolución

jurídica de la liación y la patria potestad desde una perspectiva

histórico-comparada y de derechos humanos, identicando los

principales desafíos que plantea la transición hacia un modelo de

responsabilidad parental en los ordenamientos jurídicos latinoame-

ricanos. Se empleó una metodología jurídica cualitativa basada en

el análisis doctrinal, normativo, jurisprudencial y comparado. La

revisión comprendió legislación nacional, instrumentos internacio-

nales de derechos humanos, jurisprudencia de la Corte Interameri-

cana de Derechos Humanos y literatura cientíca especializada pu-

blicada entre 2020 y 2026. Los resultados evidencian una tendencia

progresiva hacia la sustitución del concepto clásico de patria potes-

tad por el de responsabilidad parental, entendida como una función

jurídica orientada al interés superior del niño, la corresponsabilidad

familiar y el respeto de la autonomía progresiva. No obstante, per-

sisten desafíos relacionados con la liación derivada de las técnicas

de reproducción humana asistida, la liación socioafectiva, la di-

versidad familiar y la armonización legislativa en América Latina.

Se concluye que la consolidación del paradigma de responsabilidad

parental exige una reinterpretación de las instituciones tradiciona-

les del Derecho de Familia conforme a los estándares internaciona-

les de protección de la infancia.

Palabras clave liación, responsabilidad parental, patria potestad,

interés superior del niño, derechos de la niñez.

How to cite

Chilembelenbe-Seyungo, A. A., Correia-Dumbo, R. L., Martins-Chipululo, E. N., Calei-Brito, L., & Kavinda-Canjamba, A. K. (2026). From parental

authority to parental responsibility legal evolution and challenges for the protection of children. Journal of Law and Epistemic Studies, 4, e180. https://

doi.org/10.5281/zenodo.21208915

J. Law Epistemic Stud. (2026) 4: e180

Introduction

Family law has undergone one of the most profound

transformations within contemporary legal systems. The

traditional institutions governing parent–child relationships

have progressively evolved from models centred on parental

authority towards legal frameworks that recognise children

as autonomous holders of rights. This transition has been

driven by the constitutionalisation of private law, the inter-

nationalisation of human rights and the growing inuence of

the Convention on the Rights of the Child (CRC), which has

reshaped the interpretation of family relationships under the

principles of human dignity, equality and the best interests of

the child (United Nations, 1989). (Herring, 2023)

Historically, the institution traditionally known as parental

authority (patria potestad) originated in Roman law, where

patria potestas conferred extensive powers upon the pater

familias over the person and property of family members

(Gardner, 1998). Although subsequent codications progres-

sively limited these powers, nineteenth-century civil legisla-

tion largely preserved a conception of parental authority as a

legal institution primarily designed to protect parental rights

rather than children’s individual interests. During the twen-

tieth century, however, constitutional reforms, international

human rights law and judicial developments fundamentally

altered this paradigm by recognising children as independent

rights holders whose interests prevail over parental preroga-

tives (Tobin, 2019).

This transformation has been particularly signicant fol-

lowing the adoption of the Convention on the Rights of the

Child, which introduced a child-centred approach to family

law. Rather than conceiving parental authority as a privilege,

the Convention emphasises the responsibilities of parents to

ensure children’s survival, development, participation and

protection while requiring States Parties to guarantee the

eective enjoyment of children’s rights (United Nations,

1989). The principle of the best interests of the child estab-

lished in Article 3 has become the primary interpretative

criterion guiding legislative reforms and judicial decisions

worldwide (Committee on the Rights of the Child, 2013).

The evolution of international human rights law has also re-

inforced this progressive change. The Inter-American Court

of Human Rights has consistently recognised that parental

rights must be interpreted in harmony with children’s funda-

mental rights, emphasising that family relationships should

promote the comprehensive development of children rather

than reinforce hierarchical authority. Landmark judgments

such as Atala Rio and Daughters v. Chile and Fornerón and

Daughter v. Argentina illustrate the Court’s progressive in-

terpretation of family law through the principles of equality,

non-discrimination and the best interests of the child (In-

ter-American Court of Human Rights, 2012a, 2012b). This

jurisprudence has signicantly inuenced the contemporary

understanding of family law, promoting a child-centred ap-

proach that places the protection of children’s rights above

traditional conceptions of parental authority (Abreu & Fer-

reira, 2025; Silva Niño de Zepeda, 2022).

Parallel developments have occurred in Europe. The Eu-

ropean Court of Human Rights has repeatedly held that pa-

rental authority cannot be exercised contrary to children’s

welfare and that State intervention may be justied whenev-

er necessary to safeguard children’s rights under Article 8 of

the European Convention on Human Rights. Consequently,

family law has progressively shifted from an adult-centred

institution towards a child-centred legal framework bal-

ancing parental responsibilities with children’s autonomy

and evolving capacities (European Court of Human Rights,

2023).

In Latin America, this international inuence has stimu-

lated substantial legislative reforms. Several jurisdictions—

including Argentina, Spain and Colombia—have gradually

replaced or reinterpreted the traditional notion of patria potes-

tad through broader concepts such as parental responsibility,

emphasising shared parental duties, children’s participation

in decisions aecting them and the progressive exercise of

autonomy according to age and maturity. Argentina’s Civil

and Commercial Code of 2015 represents one of the clear-

est examples of this paradigm shift by expressly replacing

the concept of patria potestad with responsabilidad parental,

thereby aligning domestic legislation with international hu-

man rights standards (Argentina, 2014; Smith, 2025).

Despite these advances, the transition has not been uniform

throughout Latin America. Several legal systems continue

to preserve traditional terminology or regulatory structures

rooted in classical civil law, generating doctrinal and prac-

tical tensions regarding the interpretation of parental rights

and obligations. Ecuador constitutes an illustrative exam-

ple. Although constitutional principles and child protection

legislation strongly embrace the best interests of the child

and comprehensive protection, the coexistence of tradition-

al legal concepts with contemporary human rights standards

continues to pose interpretative challenges regarding the ex-

ercise, limitation, and judicial control of parental authority.

Simultaneously, profound social changes have introduced

new legal questions that challenge the classical foundations

of liation. Advances in medically assisted reproduction, the

growing recognition of socio-aective parenthood, increas-

ing family diversity, international surrogacy arrangements

and the expansion of children’s identity rights have trans-

formed the legal understanding of parent–child relationships

beyond biological ties alone. Modern family law therefore

requires legal institutions capable of responding to increas-

ingly complex realities while ensuring eective protection of

J. Law Epistemic Stud. (2026) 4: e180

children’s fundamental rights (European Parliament, 2024).

Recent scholarship likewise suggests that parental respon-

sibility should be understood not merely as a collection of

legal duties but as a multidimensional institution integrating

legal, ethical, psychological and social responsibilities. This

broader perspective recognises that eective child protection

depends upon cooperative parenting, shared family respon-

sibilities and institutional mechanisms supporting children’s

holistic development rather than simply regulating parental

authority (Chelouche-Dwek & Fonagy, 2026)

Although the international literature has extensively exam-

ined children’s rights, parental responsibility and family law

reform, relatively few studies have undertaken an integrated

analysis combining the historical evolution of liation, the

transformation of parental authority and comparative devel-

opments within Latin American legal systems under contem-

porary human rights standards. Most existing studies remain

focused either on doctrinal interpretation or on national leg-

islative reforms, leaving insucient comparative examina-

tion of the broader legal transition from parental authority to

parental responsibility.

This gap is particularly relevant because legal terminology

reects deeper conceptual transformations. Replacing patria

potestad with parental responsibility does not merely involve

linguistic reform; rather, it represents a fundamental rede-

nition of the legal relationship between parents and children.

Under the contemporary paradigm, parents no longer exer-

cise authority over children but full legally enforceable re-

sponsibilities aimed at guaranteeing children’s rights, auton-

omy and comprehensive development.

Accordingly, the objective of this study is to analyse the le-

gal evolution of liation and parental authority from a histor-

ical, comparative and human rights perspective, identifying

the principal challenges arising from the transition towards

parental responsibility within Latin American legal systems.

The principal contribution of this research lies in integrat-

ing historical legal analysis, comparative family law and in-

ternational human rights standards to demonstrate that the

contemporary concept of parental responsibility constitutes

not merely a legislative reform but a structural transforma-

tion of family law, redening parent–child relationships ac-

cording to the principles of human dignity, the best interests

of the child and the comprehensive protection of children’s

rights.

Methodology

This study adopted a qualitative legal research design ba-

sed on doctrinal, comparative, normative and jurisprudential

analysis. The methodological approach was selected because

the research seeks to examine the legal evolution of liation

and parental authority within the broader framework of in-

ternational human rights and contemporary family law rather

than to test empirical hypotheses.

The research combined four complementary legal me-

thods. First, the historical-legal method was employed to

analyse the evolution of liation and parental authority from

Roman law through modern civil codications to the con-

temporary concept of parental responsibility. This historical

perspective facilitated the identication of the legal, social

and constitutional transformations that have progressively

modied the parent–child relationship.

Second, the doctrinal method was used to examine specia-

lised legal literature addressing liation, parental authority,

parental responsibility, children’s rights and family law re-

form. The review focused primarily on peer-reviewed arti-

cles, scholarly books and book chapters published between

2020 and 2026, complemented by seminal doctrinal works

whose relevance remains fundamental for understanding the

historical development of these legal institutions.

Third, a comparative legal method was applied to examine

similarities and dierences among selected Latin American

and European legal systems. The comparative analysis fo-

cused on Ecuador, Argentina, Colombia, Chile and Spain

because these jurisdictions represent dierent stages in the

transition from the traditional concept of patria potestad

towards parental responsibility and incorporate diverse le-

gislative responses to contemporary family law challenges.

Finally, a normative and jurisprudential analysis was un-

dertaken to evaluate the legal framework governing liation

and parental responsibility. The study examined constitutio-

nal provisions, civil and family legislation, international hu-

man rights treaties and leading judicial decisions interpreting

children’s rights and parental responsibilities.

The principal international legal instruments analysed in-

cluded the Convention on the Rights of the Child (1989), the

American Convention on Human Rights, and other relevant

international standards concerning the protection of children

and family life. Jurisprudential analysis focused primarily

on decisions of the Inter-American Court of Human Rights,

complemented by selected judgments of the European Court

of Human Rights and constitutional courts whose decisions

have signicantly inuenced the interpretation of parental

responsibility.

The literature search was conducted between January and

March 2026 using internationally recognised academic da-

tabases, including Scopus, Web of Science, HeinOnline,

JSTOR, SciELO, and Dialnet. Boolean operators were em-

ployed to combine English and Spanish search terms such

as liation, parental responsibility, parental authority, chil-

dren’s rights, best interests of the child, family law reform,

liación, patria potestad, responsabilidad parental and inte-

rés superior del niño.

J. Law Epistemic Stud. (2026) 4: e180

The inclusion criteria comprised peer-reviewed publica-

tions published between 2020 and 2026, legal scholarship

addressing family law, liation, parental responsibility or

children’s rights, current legislation, international human

rights instruments and relevant judicial decisions. Duplica-

te records, publications lacking academic review and docu-

ments unrelated to the research objective were excluded.

The documentary evidence was subsequently organised

through thematic analysis into ve analytical categories: (i)

historical evolution of liation; (ii) transformation of paren-

tal authority; (iii) parental responsibility in comparative law;

(iv) international human rights standards; and (v) contempo-

rary legal challenges associated with family diversity, medi-

cally assisted reproduction and socio-aective liation.

The study complied with the ethical principles applica-

ble to documentary legal research. All documentary sources

were properly acknowledged in accordance with the APA

(7th edition) referencing guidelines. As the research relied

exclusively on publicly available documentary sources, it

did not involve human participants or require approval by an

institutional ethics committee.

Results and discussion

For centuries, liation was conceived primarily as a legal

institution designed to determine family lineage, inheritance

rights and parental authority. In Roman law, liation was

closely linked to patria potestas, under which the pater fa-

milias exercised extensive legal authority over descendants

and household members. This hierarchical model placed

children under the legal control of the father, with limited

recognition of their individual rights. Although Roman law

represented a coherent legal system for its historical context,

its conception of family relationships reected a patrimonial

and patriarchal understanding that diers substantially from

contemporary child-centred approaches (Gardner, 1998 ;

Kilkelly, 2024)

The reception of Roman legal principles into continental

civil law strongly inuenced nineteenth-century codica-

tions, including the French Civil Code of 1804, the Spanish

Civil Code of 1889 and many Latin American civil codes.

Under these legislative frameworks, liation remained close-

ly associated with marriage, paternal authority and distinc-

tions between legitimate and extramarital children. Conse-

quently, the legal protection aorded to children frequently

depended upon the marital status of their parents, generating

signicant inequalities in matters such as inheritance, identi-

ty and family recognition (Herring, 2023)

During the twentieth century, constitutional developments

and the expansion of international human rights law funda-

mentally transformed this traditional model. The progres-

sive elimination of legal distinctions between children born

within and outside marriage became one of the most signi-

cant reforms in family law. Equality and non-discrimination

emerged as constitutional principles requiring States to rec-

ognise identical legal protection for all children regardless of

their origin, thereby redening the legal concept of liation

(Committee on the Rights of the Child, 2013).

The adoption of the Convention on the Rights of the Child

(1989) represented a decisive turning point in this evolution.

The Convention recognises every child’s right to identity,

family relationships, nationality and parental care while re-

quiring States Parties to ensure that all legislative and ju-

dicial measures concerning children are guided by the best

interests of the child. Consequently, liation can no longer

be understood exclusively as a biological or formal legal re-

lationship but must also be interpreted as a legal institution

serving the comprehensive protection of children’s rights

(United Nations, 1989).

The jurisprudence of the Inter-American Court of Hu-

man Rights has reinforced this child-centred approach. In

Fornerón and Daughter v. Argentina, the Court emphasised

that the right to family life extends beyond biological rela-

tionships and requires States to adopt measures safeguarding

children’s identity, family ties and emotional development.

Likewise, in Atala Rio and Daughters v. Chile, the Court

rejected discriminatory interpretations of family law and

rearmed that judicial decisions aecting children must be

based exclusively on objective assessments of their best in-

terests rather than stereotypes concerning family structure

(Inter-American Court of Human Rights, 2012a, 2012b).

Contemporary legal scholarship further recognises that

liation has become increasingly pluralistic. Advances in

medically assisted reproduction, recognition of socio-af-

fective parenthood, same-sex parenting and growing family

diversity have challenged traditional assumptions linking

liation exclusively to biological parentage. Modern fami-

ly law therefore increasingly incorporates biological, social,

psychological and intentional dimensions of parenthood, re-

ecting the complexity of present-day family relationships

(Duncan, 2026; European Parliament, 2024).

Within Latin America, legislative reforms have progres-

sively incorporated these developments, although important

dierences remain among jurisdictions. While some coun-

tries have comprehensively modernised their family legisla-

tion by adopting child-centred concepts of parental respon-

sibility, others continue to preserve traditional terminology

and legal structures associated with patria potestad. These

dierences reveal that the evolution of liation remains an

ongoing process requiring continuous adaptation to interna-

tional human rights standards and changing social realities.

Overall, the historical analysis demonstrates that liation

J. Law Epistemic Stud. (2026) 4: e180

has evolved from a legal institution primarily concerned with

parental authority and family lineage into a multidimension-

al legal relationship centred on the protection of children’s

fundamental rights. This transformation provides the con-

ceptual foundation for understanding the subsequent evolu-

tion from parental authority to parental responsibility, which

represents one of the most signicant paradigm shifts in con-

temporary Family Law.

Table 1. Evolución histórica de la liación

Historical Period Predominant Legal Model Main Characteristics

Roman Law Patria potestas

Absolute paternal authority; children as subjects of

family power.

Nineteenth-century Civil

Codes

Legitimate liation

Distinction between legitimate and extramarital children;

family hierarchy.

Twentieth-century

Constitutionalism

Equality of children Elimination of legal discrimination based on birth status.

Convention on the Rights of

the Child (1989)

Child-centred approach

Best interests of the child; recognition of children as

rights holders.

Contemporary Family Law Plural concept of liation

Recognition of biological, socio-aective and intentional

parenthood; protection of family diversity.

Source: Prepared by the authors based on Roman law, the Convention on the Rights of the Child (1989), Inter-American

Court of Human Rights case law, and the comparative literature reviewed.

The transformation of parental authority represents one of

the most signicant developments in contemporary Family

Law. Traditionally, patria potestad was conceived as a le-

gal institution granting parents—particularly the father—a

broad set of powers over the person and property of their

children. Although these powers progressively became sub-

ject to legal limitations, the institution continued to reect

an authority-centred model in which children were regarded

primarily as objects of protection rather than autonomous

holders of rights (Antokolskaia, 2024).

The constitutionalisation of Family Law and the expansion

of international human rights have profoundly altered this

traditional conception. Contemporary legal systems increas-

ingly recognise that the relationship between parents and

children cannot be governed by notions of authority or own-

ership but must instead be based on shared responsibilities

directed towards safeguarding children’s rights and promot-

ing their comprehensive development. Consequently, the le-

gal focus has shifted from parental power to parental duties,

placing the child at the centre of legal protection Anggraini

& Tjempaka, (2025).

This conceptual transformation has been reinforced by

the Convention on the Rights of the Child, whose Articles

3, 5 and 18 establish that parents bear primary responsibility

for the upbringing and development of their children, while

States must support families in fullling these responsibili-

ties in accordance with the best interests of the child (United

Nations, 1989). Accordingly, parental authority can no lon-

ger be interpreted as a subjective right belonging exclusive-

ly to parents but rather as a legal function exercised for the

benet of the child.

Comparative legislation illustrates this evolution. The Ar-

gentine Civil and Commercial Code (2015) replaced the tra-

ditional concept of patria potestad with parental responsibili-

ty, dening it as the set of rights and duties corresponding to

parents for the protection, development and comprehensive

education of their children. This reform reects a broader in-

ternational tendency to replace authority-based terminology

with concepts emphasising parental obligations, equality be-

tween parents and children’s rights (Margaletić,& Preložn-

jak, 2024).

Spain has followed a similar interpretative path. Although

the Spanish Civil Code formally retains the expression patria

potestad, constitutional jurisprudence and legal scholarship

increasingly interpret the institution as a function exercised

exclusively in the interests of the child rather than as a man-

ifestation of parental authority. This functional interpretation

aligns Spanish law with the standards established by the

Convention on the Rights of the Child and the jurisprudence

of the European Court of Human Rights (Kilkelly, 2024).

Colombia likewise reects this gradual transformation.

Although its Civil Code continues to employ the tradition-

al terminology, constitutional jurisprudence has consistently

emphasised that parental authority must be exercised within

the framework of children’s fundamental rights, human dig-

nity and the constitutional principle of the best interests of

the child. Decisions of the Constitutional Court of Colombia

have repeatedly armed that parental powers are limited by

the obligation to respect children’s autonomy, participation

and integral development.

In Ecuador, constitutional reform has similarly modied

the legal understanding of parental authority. The Constitu-

J. Law Epistemic Stud. (2026) 4: e180

tion of the Republic of Ecuador (2008), together with the

Code on Children and Adolescents, establishes comprehen-

sive protection, progressive autonomy and the best interests

of the child as guiding principles for interpreting family re-

lationships. Nevertheless, the persistence of traditional legal

terminology occasionally creates interpretative tensions be-

tween classical civil law concepts and contemporary consti-

tutional principles.

The evolution from parental authority to parental respon-

sibility also reects broader changes in the understanding

of childhood itself. Modern child protection systems rec-

ognise children as active subjects of rights whose opinions,

preferences and evolving capacities must be considered in

all decisions aecting them. Consequently, parental deci-

sion-making has become increasingly subject to judicial re-

view whenever the exercise of parental responsibilities con-

icts with children’s fundamental rights (Committee on the

Rights of the Child, 2013).

Recent scholarship further argues that parental respon-

sibility should be understood as a multidimensional legal

institution combining legal obligations with ethical, educa-

tional and social responsibilities. This broader conception

acknowledges that eective parenting requires cooperation

between parents, public institutions and society to ensure

children’s physical, emotional, educational and psycholog-

ical development (Lowe & Douglas, 2022)

The comparative analysis therefore demonstrates that the

replacement of patria potestad by parental responsibility

represents considerably more than a terminological reform.

Rather, it constitutes a structural transformation of Family

Law in which the legal relationship between parents and

children is redened according to the principles of human

dignity, equality, shared parental responsibilities and the best

interests of the child. This evolution reects the broader con-

stitutionalisation of private law and the progressive incorpo-

ration of international human rights standards into domestic

family legislation.

Table 2. Evolution from Parental Authority to Parental Responsibility

Traditional Parental Authority Contemporary Parental Responsibility

Parent-centred institution Child-centred institution

Authority and parental powers Rights, duties and responsibilities

Hierarchical family model Cooperative parenting model

Limited recognition of children's autonomy Recognition of evolving capacities

Predominance of parental interests Primacy of the best interests of the child

Biological emphasis Biological, social and intentional parenthood

Limited judicial intervention Judicial oversight to protect children's rights

Source: Prepared by the authors based on the Convention on the Rights of the Child (1989), the Argentine Civil and Com-

mercial Code (2015), the Constitution of Ecuador (2008), and the comparative doctrine on Family Law.

Comparative Family Law reveals a gradual convergence

towards legal models that place the child at the centre of

family relationships. Although the historical development

of parental authority has diered among jurisdictions, recent

legislative reforms demonstrate a common tendency to rein-

terpret parental rights as legal responsibilities exercised in

accordance with international human rights standards.

Argentina represents one of the most signicant legislative

reforms in Latin America. The Civil and Commercial Code,

which entered into force in 2015, expressly replaced the

traditional concept of patria potestad with parental respon-

sibility (responsabilidad parental). Articles 638–704 dene

parental responsibility as a set of rights and duties exercised

jointly by both parents for the protection, upbringing, educa-

tion and comprehensive development of their children. This

reform aligns Argentine family law with the Convention

on the Rights of the Child by recognising children as rights

holders and promoting shared parental responsibilities. (Fen-

ton-Glynn, 2021)

Spain has adopted a more gradual approach. Although the

Spanish Civil Code formally retains the term patria potestad,

constitutional doctrine and judicial interpretation have sub-

stantially modied its legal meaning. Current interpretation

emphasises that parental authority is not a privilege of par-

ents but a legal function exercised exclusively for the benet

of the child. Decisions of the Spanish Constitutional Court

and the Supreme Court consistently apply the principles of

proportionality, the best interests of the child and respect for

children’s evolving capacities when resolving family dis-

putes (Dietrich, 2022).

Colombia likewise illustrates the constitutional reinter-

pretation of traditional family law institutions. Although the

Civil Code continues to employ the expression patria potes-

J. Law Epistemic Stud. (2026) 4: e180

tad, the Constitutional Court of Colombia has repeatedly

held that parental powers are limited by children’s constitu-

tional rights. Constitutional jurisprudence has progressively

strengthened children’s participation in judicial proceedings,

reinforced the principle of equality between parents and pri-

oritised the protection of children’s dignity and integral de-

velopment.

Chile has also undertaken signicant reforms aimed at

modernising family law. Legislative amendments have

strengthened the principle of co-parenting (corresponsabil-

idad parental), encouraging the active participation of both

parents in children’s upbringing following separation or di-

vorce. These reforms reect a broader movement away from

unilateral parental authority towards shared parental respon-

sibilities consistent with international standards of child pro-

tection.

Ecuador has incorporated many of these principles through

the Constitution of the Republic, the Code on Children and

Adolescents, and constitutional jurisprudence recognising

children as subjects of rights. The constitutional framework

expressly protects children’s identity, family life, equality

and comprehensive development. Nevertheless, unlike Ar-

gentina, Ecuador has not yet replaced the traditional termi-

nology of patria potestad within its civil legislation. This co-

existence between classical legal concepts and contemporary

constitutional principles generates interpretative challenges

regarding the scope of parental rights and responsibilities.

Comparative evidence indicates that dierences among

these jurisdictions are no longer primarily related to the rec-

ognition of children’s rights, which has become widely ac-

cepted, but rather to the degree of legislative adaptation and

institutional implementation. Countries that have expressly

incorporated the concept of parental responsibility generally

provide greater conceptual coherence between constitutional

principles, ordinary legislation and judicial practice. Con-

versely, legal systems that continue to rely on the traditional

notion of patria potestad often depend more heavily on con-

stitutional interpretation to reconcile classical legal terminol-

ogy with contemporary human rights standards.

These ndings indicate that the evolution of Family Law

in Latin America is characterised by a progressive transition

from authority-based models towards responsibility-based

legal frameworks. However, legislative harmonisation re-

mains incomplete, and important challenges persist regard-

ing the uniform implementation of international standards

across domestic legal systems.

Table 3. Comparative Regulation of Parental Responsibility in Selected Legal Systems

Jurisdiction Current Legal Concept Main Characteristics

Level of Alignment with

International Standards

Argentina Parental responsibility

Shared parental duties; child-centred

approach; comprehensive regulation in

the Civil and Commercial Code

Very high

Spain

Patria potestad

(functionally interpreted)

Constitutional interpretation prioritising

the child's best interests

High

Colombia Patria potestad

Constitutional jurisprudence limits

parental powers and strengthens

children's rights

High

Chile

Parental authority with co-

parenting reforms

Shared parental responsibilities and equal

parental participation

High

Ecuador Patria potestad

Constitutional protection and child-

centred principles, but traditional

terminology remains

Moderate–High

Source: Prepared by the authors based on the Civil and Commercial Code of Argentina, the Spanish Civil Code, the Co-

lombian Civil Code, Chilean family legislation, the Constitution of Ecuador and the comparative doctrine reviewed.

The progressive transformation of parental authority into

parental responsibility has been strongly inuenced by the

development of international human rights law. Beyond leg-

islative reforms, international and constitutional courts have

played a decisive role in redening the legal relationship

between parents and children by interpreting family law in

light of the principles of human dignity, equality, non-dis-

crimination and the best interests of the child. Judicial in-

terpretation has therefore become a fundamental mechanism

for adapting traditional family law institutions to contempo-

rary human rights standards.

The Convention on the Rights of the Child (CRC) consti-

tutes the cornerstone of This legal shift. Its provisions es-

J. Law Epistemic Stud. (2026) 4: e180

tablish that children are autonomous holders of rights and

require that all legislative, administrative and judicial deci-

sions concerning them be guided by the principle of the best

interests of the child (Art. 3). Furthermore, Articles 5, 12 and

18 recognise children’s evolving capacities, their right to be

heard in matters aecting them and the shared responsibili-

ties of parents in ensuring their upbringing and development

(United Nations, 1989).

The Committee on the Rights of the Child, through Gen-

eral Comment No. 14, claried that the best interests of the

child should function simultaneously as a substantive right,

a fundamental interpretative principle and a procedural rule

applicable to all decisions involving children. This inter-

pretation signicantly broadened the legal understanding of

parental responsibility by requiring judges and public au-

thorities to prioritise children’s rights over competing adult

interests whenever conicts arise (Committee on the Rights

of the Child, 2013).

Within the Inter-American Human Rights System, the

Inter-American Court of Human Rights has progressive-

ly consolidated a child-centred approach to family law. In

Fornerón and Daughter v. Argentina, the Court held that the

right to family life cannot be interpreted exclusively through

biological parenthood but must also consider emotional

bonds, identity and children’s comprehensive development.

The judgment emphasised that States bear positive obliga-

tions to preserve family relationships whenever compatible

with the child’s best interests (Inter-American Court of Hu-

man Rights, 2012a).

Similarly, Atala Rio and Daughters v. Chile marked a

landmark decision by rejecting discriminatory assumptions

concerning parental capacity based on sexual orientation.

The Court concluded that restrictions on parental rights can-

not rely on stereotypes or subjective moral judgments but

must instead be supported by objective evidence demon-

strating actual harm to the child. This judgment signicantly

strengthened the principles of equality and non-discrimi-

nation within family law while reinforcing the primacy of

the child’s best interests (Inter-American Court of Human

Rights, 2012b).

The jurisprudence of the European Court of Human Rights

(ECtHR) has likewise contributed to the reinterpretation of

parental responsibility under Article 8 of the European Con-

vention on Human Rights. The Court consistently recognises

that family life encompasses biological, adoptive and de fac-

to family relationships and that State intervention aecting

parental rights must satisfy the principles of legality, neces-

sity and proportionality. Decisions concerning child custody,

adoption and family reunication repeatedly emphasise that

children’s welfare constitutes the paramount consideration

when balancing competing family interests (European Court

of Human Rights, 2023).

National constitutional courts have followed similar inter-

pretative trends. The Constitutional Court of Colombia has

consistently recognised children as subjects of special con-

stitutional protection and has emphasised that parental au-

thority cannot justify conduct contrary to children’s dignity,

participation or integral development. Likewise, the Consti-

tutional Court of Ecuador has progressively interpreted con-

stitutional provisions concerning childhood in accordance

with international human rights instruments, reinforcing the

constitutional obligation to guarantee comprehensive protec-

tion and the progressive autonomy of children.

The convergence of international and constitutional juris-

prudence demonstrates that parental responsibility has ac-

quired an autonomous legal content extending beyond tradi-

tional civil law categories. Rather than representing merely

a collection of parental rights and duties, parental respon-

sibility now functions as a constitutional institution whose

exercise remains permanently subject to judicial scrutiny

whenever children’s fundamental rights are at risk.

Consequently, the evolution of international jurisprudence

reveals that the contemporary legitimacy of parental respon-

sibility no longer derives from parental status alone but from

its eective contribution to safeguarding children’s dignity,

identity, participation and holistic development. This judicial

evolution conrms that the constitutionalisation of Family

Law has transformed parental responsibility into an institu-

tion fundamentally oriented towards the protection of chil-

dren’s human rights.

The transition from parental authority to parental respon-

sibility has generated new legal challenges that extend be-

yond the traditional regulation of parent–child relationships.

Scientic and technological advances, evolving family

structures and the growing recognition of children’s autono-

my require legal systems to reinterpret classical family law

institutions in order to respond eectively to increasingly

complex social realities. Contemporary Family Law there-

fore faces the challenge of balancing legal certainty with the

exibility necessary to protect children’s rights in changing

social contexts.

One of the most signicant developments concerns medi-

cally assisted reproduction. Advances in reproductive tech-

nologies have transformed the traditional legal foundations

of liation by separating biological, genetic, gestational and

intentional parenthood. These developments raise complex

legal questions concerning the determination of legal parent-

hood, the child’s right to know their genetic origins and the

legal recognition of intended parents. Comparative legisla-

tion demonstrates considerable diversity in addressing these

issues, reecting the absence of internationally harmonised

legal standards (European Commission, 2024).

J. Law Epistemic Stud. (2026) 4: e180

Table 4. Principal International Judicial Standards on Parental Responsibility

Judicial Body

Leading Decision /

Instrument

Principal Legal Contribution

United Nations Committee on

the Rights of the Child

General Comment No. 14

(2013)

Denes the best interests of the child as a

substantive right, interpretative principle and

procedural rule.

Inter-American Court of

Human Rights

Fornerón and Daughter v.

Argentina (2012)

Protects family identity and recognises positive

State obligations regarding family relationships.

Inter-American Court of

Human Rights

Atala Rio and Daughters

v. Chile (2012)

Prohibits discrimination in family law and

reinforces the primacy of the child's best interests.

European Court of Human

Rights

Article 8 jurisprudence

Requires proportionality and prioritises children's

welfare in family disputes.

Constitutional Courts

(Ecuador and Colombia)

Selected constitutional

case law

Reinterprets parental authority consistently

with constitutional and international child rights

standards.

Source: Prepared by the authors based on the Convention on the Rights of the Child (1989), General Comment No. 14

(2013), the case law of the Inter-American Court of Human Rights, the European Court of Human Rights, and the constitu-

tional jurisprudence of Ecuador and Colombia.

exposure. Consequently, parental responsibility increasingly

encompasses duties associated with digital citizenship and

technological risk prevention (UNICEF, 2021).

Articial intelligence is also beginning to inuence fam-

ily law. Although AI systems cannot replace judicial deci-

sion-making in matters involving children’s rights, they are

increasingly employed in case management, legal informa-

tion retrieval, risk assessment and the administration of child

protection services. These developments create opportuni-

ties for improving judicial eciency while simultaneously

raising concerns regarding transparency, algorithmic bias,

accountability and procedural fairness. International organi-

sations have therefore stressed that AI should remain subject

to human oversight whenever decisions aect children’s fun-

damental rights (UNESCO, 2021; Council of Europe, 2024).

Comparative analysis demonstrates that existing family

legislation has not fully adapted to these emerging realities.

While international human rights standards provide general

principles for protecting children’s rights, many domestic

legal systems continue to regulate parental responsibility

through legislative frameworks originally designed for tra-

ditional family structures. This regulatory gap may generate

legal uncertainty in cases involving assisted reproduction,

transnational parenthood, digital identity or new forms of

caregiving relationships.

The evidence reviewed therefore suggests that the future

development of Family Law should move beyond merely

replacing the terminology of patria potestad with parental

responsibility. Instead, legal systems must develop com-

prehensive regulatory frameworks capable of addressing

the increasing complexity of contemporary parenthood

A second challenge relates to the growing recognition of

socio-aective liation. Contemporary doctrine increas-

ingly acknowledges that stable emotional bonds may con-

stitute a legitimate basis for recognising legal parent–child

relationships independently of biological ties. Several Lat-

in American jurisdictions have progressively incorporated

socio-aective parenthood through judicial interpretation,

particularly in cases involving stepfamilies, long-term care-

giving relationships and de facto parenting. This evolution

reects the principle that family law should prioritise chil-

dren’s identity and emotional stability over exclusively bio-

logical criteria (Calderón, 2022).

Family diversity also represents an important area of legal

transformation. The recognition of single-parent families,

same-sex parenting, blended families and other non-tradi-

tional family structures has expanded the legal understand-

ing of parenthood beyond conventional models. International

human rights jurisprudence consistently rejects discrimina-

tory treatment based on family composition and emphasises

that legal protection must focus on children’s welfare rather

than on predetermined family models (Inter-American Court

of Human Rights, 2012b; European Court of Human Rights,

2023).

Another emerging issue concerns the protection of chil-

dren’s digital identity and personal data. Increasing digital-

isation has created new responsibilities for parents regarding

children’s online privacy, image rights and digital footprint.

Parents are now required not only to exercise traditional care-

giving responsibilities but also to safeguard children’s digi-

tal rights in environments characterised by permanent data

collection, algorithmic proling and extensive social media

J. Law Epistemic Stud. (2026) 4: e180

The ndings of this study conrm that the legal evolution

of liation and parental responsibility reects one of the

most signicant transformations within contemporary Fam-

ily Law. The transition from patria potestad to parental re-

sponsibility is not merely a terminological modication but

rather a profound conceptual shift resulting from the consti-

tutionalisation of private law and the progressive incorpora-

tion of international human rights standards into domestic

legal systems.

while ensuring full compliance with international human

rights standards. This evolution requires greater legislative

harmonisation, stronger judicial protection and multidisci-

plinary approaches integrating legal, psychological, techno-

logical and social perspectives.

Ultimately, parental responsibility should be understood as

a dynamic legal institution whose content evolves alongside

social change. Its legitimacy depends not upon preserving

traditional family models but upon its capacity to guarantee

children’s dignity, identity, participation and holistic devel-

opment within increasingly diverse family environments.

Figure 1. Evolution or Parent-Child Legal Relationships.

Sources: Prepared by the authors based on the Roman Law, the Convention on the Rights of the Child (1989), comparative

human rihgts standards, comparative legislation and doctrine on Family Law.

The historical analysis demonstrates that the traditional

institution of patria potestas was originally conceived as a

legal mechanism designed to protect family authority and

patrimonial interests. However, the emergence of constitu-

tional principles centred on human dignity, equality and the

recognition of children as autonomous rights holders funda-

mentally altered the legal basis of parent–child relationships.

Consequently, parental responsibility has progressively re-

placed authority as the organising principle of contemporary

family law, transforming parental powers into legally en-

forceable duties exercised exclusively for the benet of the

child (Couzens, 2025; Freeman & Taylor, 2025).

The comparative analysis further indicates that Latin

American legal systems have advanced unevenly in this tran-

sition. Argentina represents the clearest example of legisla-

tive adaptation through the explicit incorporation of parental

responsibility into its Civil and Commercial Code. Spain and

Colombia have largely achieved similar results through con-

stitutional interpretation and judicial development, despite

formally retaining the traditional concept of patria potestad.

Ecuador, by contrast, has embraced constitutional principles

consistent with international human rights standards but still

preserves terminology and regulatory structures that occa-

sionally generate interpretative inconsistencies between con-

stitutional law and ordinary civil legislation.

These dierences suggest that eective implementation of

J. Law Epistemic Stud. (2026) 4: e180

children’s rights depends not solely upon legislative reform

but also upon judicial interpretation and institutional capac-

ity. The comparative experience demonstrates that legal ter-

minology acquires practical signicance when accompanied

by coherent constitutional interpretation, specialised family

courts, child-centred procedural guarantees and public poli-

cies supporting families in the exercise of parental responsi-

bilities. Accordingly, replacing patria potestad with parental

responsibility should be understood as part of a broader in-

stitutional transformation rather than an isolated legislative

amendment.

Another signicant nding concerns the growing com-

plexity of contemporary liation. Scientic advances in as-

sisted reproduction, increasing recognition of socio-aective

parenthood and the diversication of family structures have

substantially expanded the legal concept of parenthood be-

yond biological aliation. These developments challenge le-

gal systems to reconcile technological innovation with chil-

dren’s rights to identity, family life and legal certainty. The

analysis therefore suggests that future legislative reforms

should adopt exible legal frameworks capable of accom-

modating multiple forms of parenthood while preserving the

paramount importance of the child’s best interests.

The emergence of digital technologies introduces an ad-

ditional dimension to parental responsibility. Parents are in-

creasingly expected to safeguard children’s digital identity,

online privacy and informational autonomy in environments

characterised by permanent digital interaction and algorith-

mic decision-making. Consequently, parental responsibility

now encompasses obligations that were absent from tradi-

tional family law, requiring closer integration between fami-

ly law, data protection law and children’s digital rights.

The ndings also highlight the growing inuence of inter-

national human rights jurisprudence on domestic family law.

The case law of the Inter-American Court of Human Rights

and the European Court of Human Rights demonstrates a

clear tendency towards interpreting parental rights through

the lens of children’s fundamental rights rather than parental

authority. This judicial evolution reinforces the conclusion

that parental responsibility has become a constitutional insti-

tution whose legitimacy derives from its capacity to promote

children’s comprehensive development and eective enjoy-

ment of their rights.

Figure 2. Contemporary Model of Parental Responsibility

Sources: Prepared by the authors based on the Covention on the Rights of the Child (1989), comparative family law, and the

international human rights standards analysed in this study.

J. Law Epistemic Stud. (2026) 4: e180

From a theoretical perspective, the study supports the

proposition that parental responsibility should be understood

as a dynamic legal institution whose content evolves along-

side social, technological and cultural change. Unlike the

traditional concept of patria potestad, which primarily reg-

ulated hierarchical family authority, parental responsibility

functions as a multidimensional legal framework integrating

constitutional principles, human rights obligations and inter-

disciplinary knowledge concerning child development and

family welfare.

Therefore, the evolution analysed throughout this study

demonstrates that contemporary Family Law is moving to-

wards a model in which legal institutions are evaluated ac-

cording to their eectiveness in protecting children’s rights

rather than their historical continuity. This paradigm shift

not only redenes the legal relationship between parents and

children but also requires continuous legislative adaptation

to emerging social realities and international human rights

standards.

Conclusions

This study analysed the legal evolution of liation and pa-

rental authority from a historical, comparative and human

rights perspective, demonstrating that contemporary Family

Law has undergone a profound conceptual transformation.

The traditional institution of patria potestas, originally con-

ceived as a mechanism of parental authority and family hie-

rarchy, has progressively evolved into the concept of paren-

tal responsibility, understood as a legal institution centred on

the protection of children’s rights and the promotion of their

comprehensive development.

The comparative analysis conrms that this transforma-

tion has not occurred uniformly across Latin American le-

gal systems. Argentina represents the most explicit legisla-

tive transition by formally adopting the concept of parental

responsibility, whereas Spain, Colombia and Ecuador have

largely relied on constitutional interpretation and judicial

development to adapt traditional legal concepts to contem-

porary human rights standards. These ndings indicate that

the eectiveness of children’s legal protection depends not

only on legislative reform but also on the coherence between

constitutional principles, ordinary legislation and judicial in-

terpretation.

From the perspective of international human rights law,

the study demonstrates that the Convention on the Rights of

the Child and the jurisprudence of the Inter-American Court

of Human Rights and the European Court of Human Rights

have fundamentally redened the legal relationship between

parents and children. The principle of the best interests of the

child has become the central criterion governing the inter-

pretation and exercise of parental responsibilities, replacing

authority-based approaches with models founded on dignity,

equality, participation and the progressive autonomy of chil-

dren.

The research also identies emerging legal challenges that

require continued legislative and doctrinal development.

Medically assisted reproduction, socio-aective liation,

diverse family structures, children’s digital identity and the

increasing use of articial intelligence in family-related de-

cision-making demonstrate that parental responsibility is a

dynamic legal institution whose content must continuously

evolve to respond to technological innovation and social

transformation while preserving children’s fundamental ri-

ghts.

The principal contribution of this article lies in integrating

historical analysis, comparative law and international human

rights to demonstrate that the transition from parental autho-

rity to parental responsibility represents a structural trans-

formation of contemporary Family Law rather than a simple

terminological change. This perspective contributes to the

ongoing doctrinal debate by proposing that parental respon-

sibility should be understood as a constitutional institution

whose legitimacy derives from its capacity to guarantee the

comprehensive protection of children’s rights.

Although the study was limited to documentary, norma-

tive and jurisprudential analysis, the ndings provide a ro-

bust theoretical framework for future empirical research.

Further studies could examine how parental responsibility is

implemented in judicial practice, evaluate the eectiveness

of legislative reforms across dierent jurisdictions and ex-

plore the legal implications of emerging technologies for the

protection of children’s rights in increasingly digital family

environments.

Ultimately, the consolidation of parental responsibility

requires legal systems to move beyond traditional concep-

tions of parental authority towards child-centred models that

fully integrate constitutional principles, international human

rights standards and the realities of contemporary family life.

Only through this comprehensive approach will Family Law

be able to respond eectively to the evolving needs of chil-

dren and families in the twenty-rst century.

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Conicts of interest

The authors declare that they have no conicts of interest.

Author contributions

Alfredo A. Chilembelenbe-Seyungo, Rosária L. Co-

rreia-Dumbo, Eunice N. Martins-Chipululo, Luís Calei-Bri-

to, and Alberto K. Kavinda-Canjamba: Conceptualization,

data curation, formal analysis, investigation, methodology,

supervision, validation, visualization, drafting the original

manuscript and writing, review, and editing.

Data availability statement

The datasets used and/or analyzed during the current study

are available from the corresponding author on reasonable

request.

Statement on the use of AI

The authors acknowledge the use of generative AI and

AI-assisted technologies to improve the readability and cla-

rity of the article.

Disclaimer/Editor’s note

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cations are solely those of the individual authors and con-

tributors and not of Journal of Law and Epistemic Studies.

Journal of Law and Epistemic Studies and/or the editors

disclaim any responsibility for any injury to people or pro-

perty resulting from any ideas, methods, instructions, or pro-

ducts mentioned in the content.