BRAZIL Law and Practice Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
another municipality within the responsibilities of both parents, so even a relatively short move may require agreement where it crosses a municipal boundary or alters the child’s established routine. A more distant move within the same state receives closer scrutiny when it makes midweek care, alter - nate weekends or other regular contact impractica - ble. Although immigration, international enforcement and overseas travel are not involved, the court applies substantially the same best-interests assessment used in international relocation cases. It considers the reasons for the move, distance, schooling, family sup - port, travel time and cost, together with the practical arrangements required to preserve the child’s relation - ship with both parents. A move to another Brazilian state does not engage a separate system of family law. The Federal Constitu - tion, Civil Code, Child and Adolescent Statute and federal procedural legislation apply throughout Brazil. The relevant differences are practical, including dis - tance, local court administration, state court fees and the possible transfer or co-ordination of proceedings. A unilateral distant move intended to obstruct contact may also fall within Article 2 (VII) of the Parental Aliena - tion Act. Relocation is not parental alienation merely because the other parent opposes it. The provision concerns an unjustified change to a distant location that interferes with the child’s family relationships. The greater the effect on care and contact, the more closely the court’s assessment will follow the full relo - cation analysis described in 2.3 Application to a State Authority for Permission to Relocate a Child .
to permanent relocation: a passport or travel authori - sation may permit departure without permitting a new country of residence. For the 1980 Hague Convention, the decisive issue is not the departure document alone. Under Article 3, a removal or retention is wrongful where it breaches rights of custody under the law of the child’s habit - ual residence and those rights were actually being exercised or would have been exercised but for the removal or retention. Those rights include the power to determine the child’s place of residence. A lawful holiday may therefore become a wrongful retention once the child is kept abroad beyond the agreed date. In this setting, international child abduction is mainly a civil and family-law idea. It is not automatically a separate Brazilian crime. Criminal exposure depends on the facts and may involve breach of an order, false documents, concealment or Article 249 of the Criminal Code, whose use against a parent is limited by its own terms. A criminal complaint does not replace the civil return process and can sometimes make a voluntary return harder. 3.2 Steps Taken to Return Abducted Children The left-behind parent should act promptly, pre - serve the available evidence and contact the Federal Administrative Central Authority, known as ACAF. The request should identify the child and accompanying adult, the child’s habitual residence, the custody rights being exercised, the agreed terms of travel, the date of the removal or retention and the child’s probable location. Birth and custody records, evidence of daily care, travel documents, messages, photographs and all available location information should be collected without delay. Where the 1980 Hague Convention was in force between Brazil and the destination State at the rel - evant time, ACAF may transmit an application under Article 8 to the foreign Central Authority. The request - ed State may assist in locating the child, pursuing voluntary return or mediation, arranging protective measures and commencing judicial return proceed - ings under its domestic procedural law. Article 29 also permits the left-behind parent to apply directly to the competent authority in that State, usually with spe -
3. Child Abduction 3.1 Legality
Taking a child out of Brazil without the required consent or judicial authorisation is unlawful where it breaches the other parent’s parental authority, custody rights or a court order. Article 1,634 (IV) of the Civil Code, Arti - cles 83 to 85 of the Child and Adolescent Statute and National Justice Council Resolution 131/2011 govern international travel authorisation. Compliance with border formalities does not, however, prove consent
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