By means of Law 2126 of 2021, the norms that regulate the creation, conformation, and operation of the Comisarías de Familia are modified, the governing body is established, and other provisions are issued as follows:
It is established that the Comisarios de Familia oversee specialized attention to prevent, protect, restore, repair, and guarantee the rights of those who are at risk of suffering or have suffered gender-based violence in the family context and/or are victims of other types of intra-family violence.
1. The law provides the main functions of the Comisario de Familia, which are of two types. On the one hand, those that have to do with management functions within the Comisaría de Familia and on the other hand, those directly related with his or her competencies as Administrative Authority. In this second sense, it is worth highlighting the following:
- Adopt any protection and stabilization measures needed to guarantee, protect, restore, and repair the rights violated or threatened in cases of violence within the family.
- Rescue children or teenagers from situations in which he/she is a possible victim of violence in the family context.
- Adopt measures to restore the rights of minors whose rights are being threatened or endangered.
- Provisionally define the custody and visitations, child support, and the suspension of the life together of the spouses or permanent partners.
- To establish the provisional financial support for the elderly.
2. The law creates new protection measures that can be ordered by the Comisario de Familia, the list goes from six types of measures to more than 13. The most significant changes concerning the measures covered by the previous statute are the following:
- In cases in which the eviction from the house shared by the victim and the victimizer is ordered, the Police will execute the eviction order directly, without the mandatory presence of the authority that issued the order.
- Require the police, upon request of the victim, to accompany him or her to the place of residence when she/he has been forced to leave.
- Provisionally decide the custody and visitation regime over children.
- To suspend the right of the aggressor to own, carry, and use fire weapons.
- To decide provisionally who will be in charge of the child support.
- To order the aggressor to immediately return the objects of personal use, identity documents, and any other document or object of the victim.
- The Administrative Authority may request the Judge to prohibit the aggressor to carry out any act of alienation or encumbrance of his property subject to registration if he has a marital partnership in force.
3. The law solves conflicts of jurisdiction that previously existed between the Defensor de Familia and the Comisario de Familia.
The law includes crucial modifications to the jurisdiction of the Comisario de Familia, in the exercise of its powers as Administrative Authority. To begin with, from now on the Comisario de Familia will have jurisdiction to hear cases of violence in the family context.
For these purposes, the law included its definition of domestic violence as follows "any action or omission that results in physical, sexual, psychological or economic harm or suffering committed by one or more members of the household, against one or more members of the same, even if they do not live under the same roof".
Likewise, it determines that the Comisario de Familia will have jurisdiction when the conduct is committed by the following persons:
- spouses or permanent partners.
- the parents (even if they do not live in the same household).
- caregivers of one or more members of the family.
- persons living in the same household without a kinship relationship.
- persons who have been in a relationship, whether living together or not.
Likewise, this law restricts the jurisdiction of Comisarios de Familia in cases of children. The Comisarios de Familia will henceforth be competent to initiate Protection Processes regarding minors whose rights have been threatened or violated by domestic violence, except in cases of sexual violence.
- If there are other children within the same household who are victims of violence other than sexual violence, the Defensor de Familia will assume jurisdiction over all of them.
- In cases in which in addition to sexual violence in the family context against the child or teenager, there are also acts of violence against one or more of the adults in the household, the competence would belong to the Comisario de Familia.
Finally, the law provides the obligation of the Comisario de Familia and Defensor de Familia who hear cases other than those under their jurisdiction, to firstly verify the guarantee of rights, and if necessary, initiate the protection process, ordering the necessary measures of protection. Only then may refer the case to the competent authority no later than the third working day following.
4. This law also modifies the rules on the qualifications of individuals aspiring to hold the position of Comisario o Defensor de Familia, as follows:
- Title to practice law in Colombia.
- Graduate degree in law, especially in areas related to family law.
- Two years of experience related to the functions of the position.
- Approve the tests designed by the Administrative Department of the Civil Service.
- Not having a criminal, disciplinary or fiscal record, nor be disqualified by special regulations, especially in the registry of sex offenders.
5. The Law includes two requirements for professionals who aspire to be part of the interdisciplinary teams:
- Valid professional card, in cases where it is possible to prove it due to the nature of the profession.
- Proof of experience related to violence in the context of the family, gender-based violence, family justice, or issues related to the protection of the rights of children and adolescents.
6. General provisions:
The law provides that all requests made by the Comisarios de Familia to the competent Judge for the issuance of an arrest warrant for non-compliance with the definitive or provisional protection measures of the aggressors will have preferential processing, except for tutela or habeas corpus proceedings. Failure to comply with this measure will result in the sanction of misconduct.
On the other hand, the law created the obligation to carry out a monthly follow-up for children or teenagers placed in foster homes or other alike protection measures.
Finally, it is worth highlighting the authorization to the cities to implement a stamp for family justice. The proceeds of these resources will be used to finance the operating expenses, payroll, and equipment of the Comisarias de Familia.