Co-parenting and the Ethics of Care: From the Competitive to the Collaborative Model

Abstract

This paper employs a juridical-dogmatic methodology with a qualitative approach, based on normative and jurisprudential analysis, complemented by doctrinal review and an ethical-theoretical perspective grounded in the ethics of care. It examines the evolution of Ecuadorian law on the custody of children and adolescents, highlighting the transition from a competitive model based on maternal preference to one grounded in parental co-responsibility. The analysis centers on Judgment n.º 28-15-IN/21 of the Constitutional Court, which held that maternal preference violated the principles of equality and the best interests of the child. On this basis, the article argues that shared custody —despite not being explicitly regulated in the national legal framework— constitutes the constitutionally desirable model, provided it promotes cooperation, affectivity, and the comprehensive wellbeing of children and adolescents. Drawing on the theoretical contributions of Carol Gilligan and Nel Noddings, the paper integrates the ethics of care as a hermeneutic framework to support a relational conception of justice, capable of replacing reductionist, power-centered logics with practices of accompaniment and empathy. Finally, it advocates for a redefinition of the role of law and judges, recognizing them as facilitators of relationships whose decisions should orient family law toward a shared practice of ethical care that humanizes adjudication and strengthens substantive equality between parents, in the best interests of children and adolescents.