BRAZIL Law and Practice Contributed by: Adriana Chieco, Camila Ieracitano Macedo Maia and Mabel Tucunduva Prieto de Souza, Chieco Advogados
and children, and even where the minor’s residence is fixed with one parent (the reference household), parental authority remains joint. Judicial decisions relating to custody and contact arrangements must always observe the principle of the best interests of the child. Accordingly, the court must prioritise the child’s welfare, taking into account, among other factors, territorial limits on changes of domicile, the impact of alternating residence arrange ‑ ments (such as weekly rotation), the need for restricted and/or supervised contact, and the possible exclusion of one parent in cases involving abuse or violence. Maintenance The Brazilian Civil Code defines maintenance (ali ‑ mony) as encompassing all that is necessary for the dignified subsistence of the individual. In the case of children and adolescents, maintenance must meet the needs of the beneficiary, which include food, health, education, clothing, leisure, housing, transportation, personal care, and extracurricular activities, among others. However, in addition to the needs of the minor, maintenance must also consider the financial capacity of the parent paying such support. Under Brazilian law, child and adolescent mainte ‑ nance is determined in accordance with the triad of need, capacity and proportionality. The court must strike a balance between the actual needs of the child or adolescent – built around age, education, daily rou ‑ tine and standard of living – and the effective financial capacity of the parent, to determine the appropriate level of maintenance. The obligation may not be set at an excessive or unreasonable level so as to compromise the subsist ‑ ence of the obligor, nor may it be fixed at a merely nominal amount that would undermine the purpose of ensuring the child’s or adolescent’s dignified develop ‑ ment. In essence, maintenance must be established in a proportionate and reasonable amount, consistent with the specific circumstances of the case. Child support may be determined as a percentage of the parent’s income, by reference to the statutory minimum wage, or as a fixed sum sufficient to meet the needs of the child or adolescent.
The parties may enter into an extrajudicial agreement regarding the amount of child or adolescent mainte ‑ nance. However, for such agreement to be enforce ‑ able, it is necessary that the agreement be ratified by a judge, following the opinion of the Public Prosecutor’s Office. The decision to establish maintenance may be ren ‑ dered in a lawsuit for offer/fixation of maintenance, in divorce or custody proceedings, or within the frame ‑ work of urgent measures. As to the duration of child support, maintenance will, in principle, be provided to minor children until they reach the age of major ‑ ity, at 18 years. However, legal doctrine and case law (including a binding precedent of the STJ) hold that termination is not automatic and requires a judicial decision, subject to adversarial proceedings. This is because, although parental authority is extinguished upon majority, the right to receive maintenance does not automatically cease, as it then derives from kin ‑ ship relations, in which proof of the beneficiary’s need is required. In general, continuation is granted to allow completion of educational training. It should also be noted that maintenance may persist without age limi ‑ tation where the beneficiary is a person with a disabil ‑ ity who is unable, through their own work, to provide self support. In the case of children and adolescents up to the age of 16, they will be represented by a parent or legal guardian in any lawsuit concerning maintenance. From the age of 16, the adolescent may initiate a maintenance lawsuit, but only with the assistance of a parent or legal representative; and upon reaching the age of 18, they may do so independently. 3.3 Other Matters Judicial Supplementation of Consent Ideally, where joint custody is in place, the parents should reach consensus on matters of parental responsibility, such as schooling, medical treatment, religion and related issues, particularly because del ‑ egating the authority to decide such personal matters – for instance, religion and medical treatment – to the State may generate more difficulties than solutions. In any event, where consensus is lacking, the matter may be resolved judicially through a lawsuit for judi ‑ cial supplementation of consent, as in cases involving
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