1/10/2024
On October 31st, 2023, Law No. 14.713 (“Law No. 14.713/23“) was published, amending §2 of Article 1.584 of the Brazilian Civil Code (“CC“), which establishes that, when both parents are considered legally capable of fully exercising their parenthood, in case of disagreement between them, the custody of their child(ren) will be shared.
The main purpose of such rule is to encourage equal and fair participation of both parents in the daily routine of their child(ren), preserving rights and obligations for both the child(ren) and adolescents, as well as for the parents.
Joint custody therefore constitutes, in practice, a protection against parental alienation and a mechanism of gender equality, promoting, thus, the creation of strong and healthy family bonds for children and adolescents.
The rule of §2, of Article 1.584, of the CC, as mentioned above, remains effective. The difference, however, is that the “risk” of domestic or family violence is now considered an impediment for joint custody.
Although the amendments introduced by Law No. 14.713/23, aimed to protect children and adolescents from violence, it is possible that such amendments turns out not only to be ineffective, but also eventually jeopardizes the parties involved.
Law No. 14.713/23 does not provide objective criteria for determining the occurrence of “risk of violence”, raising an intense debate upon this matter, once the term “risk” may lead to complex and subjective interpretations on the effective occurrence of violence, or on the lack of it.
As established in Article 699-A of the Brazilian Civil Procedure Code, added by Law No. 14.713/23, the existence – or not – of risk of violence will depend on the evidence presented by the parties, within a five (5) days term.
Therefore, once again, the power to decide upon one’s private life is conferred to a third party – a judge – unaware of the parties’ routine, their needs and relationship track-record, which can lead to false reports of violence and mistaken court decisions, as well as to an increase in parental alienation rates and irreparable damage to family bonds.
In this regard, in order to reach genuinely adequate divorce agreements, the assistance of specialized professionals, from a technical and interpersonal point of views –such as lawyers, psychologists and mediators – has become more and more important.
