Impossibility of filing a counterclaim regarding food and the principle of procedural economy

Abstract

The General Organic Code of Procedures in Ecuador, which regulates the procedures for the processing of non-criminal matters, establishes in its article 154 that counterclaims are not applicable in matters of food, which has given rise to numerous debates in practice about the inconvenience that as a result of its interpretation, several processes have to be promoted to resolve issues related to the measures that must be adopted with respect to the children when the plaintiff in the process only requests that alimony be established. Based on a thorough bibliographic review and the application of theoretical and legal methods that served as a basis for the analysis and interpretation of the doctrine, jurisprudence and national and international legislation, the position is taken to consider that in the processes derived from the rights of minors, based on the protection that the family jurisdiction must offer due to the nature of the process and the best interests of the child, judges must provide solutions to the measures of food, visits, custody and care that arise from the process without the counterclaim being enforceable, as long as the decision does not imply surprise or defenselessness for the plaintiff or the defendant.