Ten years ago, the Parental Alienation Act, also known by the local acronym “LAP” (Law No. 12.318/2010) was enacted to prevent parents, grandparents and carers from negatively influencing the psychological formation of the child or teenager.
Punishment for parental alienation may vary from custody change to, in the extreme case, suspension of the parental authority of the alienating parent.
The LAP has been considered a step forward in Family Law for it acknowledges the psychological responsibility of parents to their minor children. Nonetheless, the LAP has been fiercely criticized by some who believe that the LAP has been misused. Instead of protecting children and teenagers from becoming victims of a fight between the parents and other family members, the LAP is exactly what has been keeping children and teenagers at risk in some cases.
This is because, under the LAP, the mere indication of parent alienation is enough for the court to grant preliminary injunctions to preserve the psychological integrity of the child or teenager, and this may even include temporary custody change. No proof is required here.
For instance, when a parent report to the authorities that his or her children may have been abused while in the other parent’s care, the reporting parent may lose custody if he or she is reported for parental alienation.
This is why many parents have been intimidated into not reporting any suspicion, which ultimately means not setting priorities straight when it comes to the safety of children and teenagers. These arguments gave grounds for the parliamentary inquiry committee on child abuse to propose a Senate Bill (Bill No. 498/2018) aiming at revoking the LAP.
The Senator in charge of delivering a report on the Bill draft, Senator Leila Barros, believes there is reason for concern about the misuse of the LAP. Senator Barros voted for the passing of the Bill, but, in her opinion, there is no need to fully revoke the LAP; instead, she suggests that penalties be imposed to discourage any misuse of the LAP.
The proposed changes to the LAP aims at determining whether the real reason behind a parent, grandparent or carer reporting the other parent’s behavior is only due to excessive care (a bona fide report) or an attempted parental alienation (bad faith report). Such proposed changes include: (i) a more intense involvement of judges in all stages of the process, especially at the initial stage, when the judge must hear both parties before making a decision (except in case of violence); and (ii) imposing penalties on any false accusation of parental alienation with unkind intentions.
Changing – instead of revoking – the LAP is a way to prevent mean-spirited persons from causing harm to the children and teenagers under their care in violation of the right to a healthy and harmonious family relationship.