BRAZIL Law and Practice Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
Family Court may not decide the merits of custody while the return issue remains pending. The Federal Court determines whether the child must return to the State of habitual residence; it does not determine final custody. Brazilian law recognises prompt return as the Conven - tion’s central rule and treats the exceptions as limited. In ADIs 4,245 and 7,686, decided on 27 August 2025, the Supreme Federal Court confirmed the Conven - tion’s full compatibility with the Federal Constitution and recognised its supralegal status. It also identified excessive delay as a structural problem and directed institutional and procedural measures intended to secure a final decision within one year. The judgment neither altered the return rule nor cre - ated an additional defence. It confirmed that Article 13 (1)(b) must be applied according to the child’s best interests and with a gender perspective. Objective and concrete indications of domestic violence against the mother may establish grave risk even where the child was not directly assaulted, but allegation alone is insufficient. The examination remains confined to the Convention exception, the available evidence and the protective measures capable of securing a safe return; it must not become a general custody or welfare trial. Proceedings brought through ACAF and the Attorney General involve no private legal fee for the applicant. Additional costs may arise from private representa - tion, sworn or certified translations, apostilles, travel, expert evidence and related proceedings. Court fees, legal aid and allocation of expenses remain governed by the Code of Civil Procedure and the applicable provisions of Resolution 449. Article 11 does not establish a six-week deadline for judgment. It requires expeditious proceedings and permits an explanation for delay to be requested after six weeks. Brazilian cases have historically taken
longer where extensive evidence, expert assessment or appeals are involved. Resolution 449 introduced a concentrated first-instance timetable and accelerated appellate consideration, while the Supreme Federal Court’s 2025 directions seek a final outcome within one year. Particularly complex cases may neverthe - less exceed that period. Where the requested return concerns a country with which no applicable return treaty is in force, the Convention’s summary-return mechanism does not apply. The claimant may seek relief before a Brazilian State Family Court under the Civil Code, the Child and Adolescent Statute and the child’s best interests, or request recognition of an effective foreign custo - dy judgment by the Superior Court of Justice, with appropriate provisional enforcement. Custody and welfare may then be examined more broadly, with - out an automatic-return presumption or the Conven - tion’s limited defences. If Brazil and the other State are linked by the 1989 Inter-American Convention on the International Return of Children, that treaty must be considered before the matter is treated as entirely non-conventional. 3.4 Non-Hague Convention Countries Brazil is a Contracting Party to the 1980 Hague Con - vention, in force for Brazil since 1 January 2000. Where a specific case links Brazil with a country for which the Convention is not in force, the non-trea - ty routes described in 3.2 Steps Taken to Return Abducted Children and 3.3 Hague Convention on the Civil Aspects of International Child Abduction apply. These may include the Inter-American Convention, an application under Brazilian child and family law, rec - ognition of a foreign judgment by the Superior Court of Justice, and proceedings in the country where the child is. The child’s best interests are then assessed without the Convention’s summary-return presump - tion and its limited defences.
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