Brazil has registered a large number of divorces, which sometimes can be accompanied by child custody disputes. In this article you will learn more about the different forms and trends of child custody in Brazil.
Divorces tend to be very difficult processes, especially when the end is marked by spouses who are not on good terms with one another.Things can get even more complicated when the separation involves children, who are directly affected by the ending of the relationship. In 2011, Brazil had a record of 351,153 divorces, which represented an increase of 45,6% in comparison to 2010 and the highest number ever registered by IBGE since 1984, when these statistics were first documented.
Even though the increase has been registered mainly in the number of divorces between childless couples, child custody disputes are still being made. In 87,3% of these cases, children stay with their mothers, which is still the standard judicial procedure and deeply entrenched idea in Brazil. However, in 2011 there has also been an increase in cases of joint custody – when both parents have legal responsibilities over the child and both have the right to stay with the child in alternating periods.
The Joint Custody
This change in the scenario is in part a consequence of the woman’s entrance in the labor market. Until some years ago, women were exclusively housewives and men were the money providers of the family. Since women began to work outside their houses, the home responsibilities have started to be shared by husband and wife, and this division reached the responsibilities of each parent towards their children.
In 2000, the cases of joint custody represented only 2,7% of all the cases of child custody. In 2010, the number was 5,5%. Although these are still minor cases, the increase in the joint custody shows that both parents may have independent financial lives and still share the time and their duties regarding their children.
Staying With Dad
Besides joint custody, there has also been an increase of fathers who ask for their child's custody. From 2002 to 2006, the number of dads who wanted to live with their children increased by 22%. They don't want to be only the “weekend fathers”, but also want to participate in the everyday lives of the kids.
Children can also have a say in the judicial decision. According to the Estatuto da Criança e do Adolescente or ECA, which is the Statute of Children and Adolescents, from 12 years of age children have the right to say which parent they want to live with. The judge will then decide based on the best interest to the child, and after checking if there hasn't been any manipulation or parental alienation.
Parental Alienation Syndrome
In order to avoid one parent turning their child against the other parent, in 2010 a parental alienation law project was introduced. According to it, when one parent interferes in the psychological formation of the children, negatively influencing their opinion about the other parent, it is considered parental alienation and it is punishable.
The law was controversial and divided the jurists opinions. On the one hand, it is good to have a legal base prohibiting this practice; on the other hand, this can cause even more conflicts and embarrassment, in this case there is a trial and the children are asked to testify against one of their parents.
In 2011, another law helped change the 2010 law, instituting that parental alienation is not a crime, but an administrative infraction which can be punished by a fine determined by the judge.
Types of Child Custody
Apart from joint custody, there are more than three types of child custody in Brazil:
- Physical custody – when both parents have the right to stay with the kid. For instance, the child spends the weekdays with the mother, and the weekends with the father.
- Sole custody – this is the main one chosen when parents are not on speaking terms with one another. According to IBGE, the Brazilian courts generally give the child's custody to the mother: from the 92,9% cases of sole custody registered in 2011, in only 5,3% the fathers were awarded with the custody of their kids. In these cases, one of the parents holds the custody of the children – and therefore, the responsibilities – and the other parent has the right to visit them in predetermined occasions.
- Alternating custody – there is an alternation in the custody and in the power of decision over the child, who spends equal and predetermined periods with both the father and the mother.
In cases where parents share the physical custody, the legal custody also tends to be shared. The other way around is not that common, though.
There are cases in which children don't stay either with their mothers nor with their fathers. Sometimes, grandparents, uncles, aunts and even cousins may be involved in the custody dispute. Judges usually take into consideration the relative with whom the child lives before making any decisions.
In 2010, the Brazilian courts conceded the joint custody of a 12-year-old girl to her grandmother and uncle with whom she had been living since she was four months old. The request had been denied by the first instance judge, and later conceded by the Superior Court of Justice. It was the first time a joint custody was given to two people who aren't a couple. It happened because the child had lived with her grandmother and uncle since she was four months old, her father is in jail and her mother travels a lot due to work, never knowing exactly when, and if, she will visit her daughter.