BRAZIL Law and Practice Contributed by: Adriana Chieco, Camila Ieracitano Macedo Maia and Mabel Tucunduva Prieto de Souza, Chieco Advogados
relocation abroad, authorisation for travel, change of school, and similar matters. Parental Alienation The concept of parental alienation is recognised in Brazil and was codified in 2010, upon the enactment of Law No 12,318/2010, which specifically address ‑ es the matter. Since then, however, the subject has faced challenges, as certain specialists and mothers contend that the law affords protection to abusive fathers (by imposing severe measures in cases of false allegations) and is employed against mothers. More recently, there has been a movement towards the repeal of Law No 12,318/2010, which has already obtained approval in the Committee on Constitution and Justice. The approved text, nevertheless, still has a legislative path to follow before coming into force. The courts usually address parental alienation through psychological expert examination, where the child and the parents are sent to a psychologist appointed by the court for a specific analysis of the matter. The parents and the child undergo interviews in order to ascertain whether acts or indications of parental alienation are present, as set forth in Article 2 of the aforementioned law, including: • conducting a campaign to discredit the conduct of the parent in the exercise of fatherhood or mother ‑ hood; • obstructing the exercise of parental responsibility; • hindering contact between the child or adolescent and the parent; • impeding the exercise of the regulated right of fam ‑ ily contact; • deliberately withholding from the parent relevant personal information concerning the child or ado ‑ lescent, including educational, medical, or address changes; • lodging false allegations against the parent, their relatives, or grandparents, with the purpose of preventing or hindering their contact with the child or adolescent; and • relocating to a distant domicile without justification, with the intention of hindering the child’s or adoles ‑ cent’s contact with the other parent, their relatives, or grandparents.
Should the psychologist responsible for the case con ‑ clude that parental alienation exists, sanctions pro ‑ vided for in the law may be imposed by the court, ranging from fines against the alienating party to an order for reversal of custody. The application of such sanctions, however, tends to be carried out with con ‑ siderable caution by the judiciary. Children’s Testimony Children may give testimony, but this depends great ‑ ly on the child’s age and the subject matter to be addressed in each case. For instance, the Statute on Children and Adolescents provides that a child must be heard in adoption proceedings from the age of 12. In family lawsuits, particularly those involving custody and parental contact, the usual practice is for the child to be heard by a psychologist and a social worker appointed by the court in the course of psychologi ‑ cal and social expert examination, rather than directly giving testimony. Testimonies may occur depending on the circumstances, but they are rare, especially because children are developing beings and highly susceptible to conflicts of loyalty. A hearing involv ‑ ing a child must therefore be conducted by qualified professionals, such as psychologists. Where children are heard, their statements are taken into account but weighed against the evidence in the record, notably the conclusions of the professionals who conducted the expert examinations. In lawsuits specifically involving parental alienation, there exists a special protocol for child hearings, under which a series of safeguards protect the minor and enable the pursuit of their best interests. Conciliation and mediation are the dispute-resolution mechanisms most commonly used in divorce and family disputes. In conciliation, the conciliator adopts a more active role and may put forward proposals to assist the parties in reaching settlement. In media ‑ tion, by contrast, the mediator focuses on restoring productive dialogue between the spouses so that they themselves can identify and propose the most appro ‑ priate terms of agreement. These consensual resolu ‑ tion mechanisms may be used before proceedings are issued, where the parties wish to avoid contested 3.4 ADR in Child Law Matters Mechanisms Outside of the Court
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