BRAZIL Law and Practice Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility The Brazilian equivalent of parental responsibility is the institution known as “ poder familiar ”, best trans - lated as parental authority. It comprises the rights and duties conferred on legal parents to protect, raise, represent and support their children and administer their property while they are in the age of minority. Its principal rules are found in the Civil Code, while the Federal Constitution of 1988 establishes the broader principles of comprehensive protection and absolute priority. The Child and Adolescent Statute gives practical effect to those constitutional guarantees. Rather than treating parental authority as control over the child, Brazilian law regards it as a legal function exercised for the child’s protection, dignity and development. A defining feature of “ poder familiar ” is that it belongs equally and simultaneously to both parents, regard - less of whether they are married, separated, divorced or have never lived together. It governs the principal decisions in a child’s life, including legal representa - tion, healthcare, education, international travel, per - manent relocation and the administration of property. Brazilian law distinguishes between representation, applicable to children under 16, and assistance, applicable to those between 16 and 18, reflecting the child’s developing autonomy and legal capacity. Where the parents cannot agree on a significant mat - ter, either may ask the Family Court to resolve the dispute according to the child’s best interests. “ Poder familiar ” must be distinguished from ” guarda “, or custody, as the two operate at different legal lev - els. Parental authority is the broader legal status from which the parents’ fundamental rights and duties arise, whereas custody concerns residence, daily care and the practical organisation of the child’s routine. Shared custody is the ordinary statutory arrangement, subject to exceptions where a parent does not wish to exercise it or is unable to do so, or where there is evi - dence of domestic or family violence. A parent without custody does not, for that reason alone, lose parental authority and ordinarily retains the right and duty to
supervise the child’s upbringing, obtain information from schools and healthcare providers, and partici - pate in major decisions. This distinction is particularly important in relocation cases: responsibility for daily care does not, by itself, authorise one parent to move the child permanently abroad without the other par - ent’s consent or judicial authorisation. “ Poder familiar ” is temporary by nature and ends when the child reaches the age of 18 or is legally emanci - pated. It may also cease through death, adoption or judicial decision. Outside these circumstances, the courts may impose suspension as a temporary restric - tion where parental duties are seriously breached or the child’s property is improperly managed. Loss of parental authority is the more severe measure and is reserved for grave statutory grounds, including aban - donment, repeated abuse of parental duties, physi - cal or psychological violence, and specified serious crimes against the child or the other parent. Either measure requires formal judicial proceedings and must remain centred on the protection of the child. 1.2 Requirements for Birth Mothers A birth mother acquires parental authority once her legal motherhood is established, ordinarily through the child’s civil registration. She is not required to be married, obtain a custody order or complete any separate judicial or administrative procedure. Article 1,634 of the Civil Code confirms that both legal par - ents exercise parental authority irrespective of their marital situation. In most cases, the Declaration of Live Birth provides the information used to identify the mother in the civil register. Different evidential or registration require - ments may apply in cases involving assisted repro - duction or disputed motherhood. No additional welfare, financial or eligibility assess - ment is imposed merely because she is the birth mother. Parental authority may subsequently be suspended or removed only by judicial decision, on statutory grounds and through proceedings that observe due process. Article 23 of the Child and Adolescent Stat - ute expressly provides that lack of financial resources
24 C HILD RELOC AT I ON 20 26
CHAMBERS.COM
Powered by FlippingBook