BRAZIL Law and Practice Contributed by: Adriana Chieco, Camila Ieracitano Macedo Maia and Mabel Tucunduva Prieto de Souza, Chieco Advogados
Under the Brazilian Code of Civil Procedure (Article 334), conciliation is a necessary step in every lawsuit, including in family matters, but the parties can mani ‑ fest their lack of interest by petitioning. In either case, the court has the power to impose mediation or con ‑ ciliation sessions on its own or at the request of any party, if it deems this relevant to resolving the lawsuit in a faster or more appropriate manner. Non-compliant parties may incur a fine of up to 2% of the value of the lawsuit and may face other penalties for contempt of court. Validity of Out-of-Court Agreements If there are no children involved, parties may settle financial matters by signing a public deed before a notary’s office. Such deed constitutes an extrajudi ‑ cial enforcement order that allows the aggrieved party to file an action for enforcement in the event of non- compliance, without having to discuss the merits of the case. The State maintains a mandatory supervising role in matters involving minor or incapacitated children, requiring the parties to seek court approval even if they agree with all the terms. In Brazil, children-related proceedings (such as cus ‑ tody/residence, contact arrangements, guardianship, and protective measures) are generally brought to the court of the child’s domicile, which in practice follows the domicile of the parent(s) or legal guardian with whom the child lives. Where the child’s domicile can ‑ not be clearly determined, or where urgent protection is required, jurisdiction may be exercised by the court of the place where the child is physically present. In determining and establishing the competent juris ‑ diction, the judge must take the following factors into account: • the place of residence of the child or adolescent; 3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings
• the principle of the best interests of the child or adolescent; • any potential risk or urgency inherent to the spe ‑ cific case; • the domicile of the parents; and • the social, familial and educational ties of the child or adolescent, in cases of an international nature involving relocation to another country. Under Brazilian law, domicile is defined as the place where an individual establishes residence with the intent of permanence. In cases concerning children and adolescents, however, the most significant con ‑ cept for the determination of jurisdiction is residence, as it reflects the actual circumstances of the child or adolescent and ensures proximity to conduct proce ‑ dural acts, such as psychosocial expert examination and hearings. 3.2 Living/Contact Arrangements and Child Maintenance Approach of the Courts In the absence of an agreement, either parent may file a lawsuit for custody and/or visitation. The court will examine such petitions for custody and/or regula ‑ tion of visitation based on the fundamental principle of the best interests of the child or adolescent. In doing so, the court will consider criteria such as emotional bonds, daily routine, the health and stability of the child or adolescent, any potential risk or unsuitable environment, as well as the availability and capac ‑ ity of the parents. Furthermore, the judge generally orders that psychosocial expert examination be used to ascertain which arrangement best serves the inter ‑ ests of the child or adolescent. The judge may also, where appropriate, order interviews with the minor and the parents. Custody and Contact Brazilian law provides that joint custody will be applied whenever possible, although domestic violence con ‑ stitutes an exception. With respect to parental respon ‑ sibility, Brazilian law establishes that parental author ‑ ity is not extinguished by divorce or separation. That is, both parents retain parental responsibility, such that important decisions concerning the minor must be taken jointly. Accordingly, divorce or separation does not alter the legal relationship between parents
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