BRAZIL Law and Practice Contributed by: Cassio Namur and Roberta Toledo, Tortoro, Madureira & Ragazzi Advogados
according to the domicile of the child’s legal rep - resentatives, and this place does not match the child’s residence, discussion may arise about the place of jurisdiction. In most cases, Brazil - ian law considers the place where the child is located and lives. Brazilian jurisdiction welcomes the request for maintenance, with the establishment of provi - sional maintenance even in the case of foreign children, provided that they are resident and/or domiciled on Brazilian soil. There are no prior rites to be fulfilled and the request can even be formulated without lawyers being present, based on the special alimony law. If the child is not domiciled or resident in Brazil, a local judge does not, strictly speaking, have competence in this matter. 3.2 Living/Contact Arrangements and Child Maintenance With the end of a relationship in which the par - ties had children, there is a need to judicially establish, for minors and incapacitated persons: • the place of residence; • the custody arrangement (unilateral or shared); • regulation of contact with the non-custodial parent; and • alimony. Custody Arrangements Currently in Brazil, the general approach is that of shared custody, in which there is the sharing of responsibility and greater balance in the time the child spends with both parents, with a view to preventing parental alienation or any other psychological harm. Custody may be unilateral, however, depending on the circumstances of the case or the parents’ situation.
Where the parents do not agree, the court makes a decision based on the best interests of the children. Thus, the financial conditions of one of the parents is not a determining factor for cus - tody and visits, but, rather, where the affective interests and physical and intellectual develop - ment of the child will be better served. The judge may rely on psychosocial analyses – supported by meetings of the parties with psy - chologists and social workers – in order to be able to make a better analysis of the situation, always prioritising the best interests of the child. The public prosecutor is also involved in super - vising matters involving minors and persons lacking capacity and may even limit or require changes to the agreements entered into by the parties if the public prosecutor believes that the interests of the children or incapacitated persons are not being properly served. Alimony and Maintenance Child maintenance is understood to be every - thing that is indispensable for the subsistence and proper development of the child or person lacking capacity, including all expenses with regard to housing, health, food, education, clothing, transportation and leisure. Alimony is not fixed or defined in Brazil. The val - ue is defined, through consensus or court order, based on meeting the needs of those who ask for it within the possibilities of those who pay. Both parents are called upon to contribute to the maintenance of their children, within their respective financial capacities and also consid - ering the social standard of family life, depend - ing on the particular case. The parties can reach an agreement on child support without having to file a lawsuit in advance. However, for the agreement to be enforceable, it will need to be
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