PARENTAL ALIENATION: INTERDISCIPLINARY PRACTICES AND ALTERNATIVE METHODS OF CONFLICT RESOLUTION

Abstract

Parental alienation is a set of practices promoted by one of the parents, grandparents or those who have custody or authority over the child, through which the aim is to distance the father or mother from contact with the child, breaking bonds and ties of affection. This legal and social phenomenon, characterized by psychological interference in the relationship between parents and children, emerges as a growing challenge in the context of family disputes, especially in separation and divorce proceedings, and has been increasingly recurrent in family courts, requiring the Brazilian Judiciary to adapt to this new reality (RICCI; PEREIRA, 2021). This practice arises from feelings of resentment, hurt, revenge and resentment after a couple separates or divorces, generally when there is competition and a feeling of revenge, or even when there is a dispute over the child's attention and love, and can occur both consciously and unconsciously (CNJ, 2015a).

It is important to emphasize that the practice of parental alienation goes against the obligation of parents or guardians to guarantee children and adolescents all their fundamental rights, among which healthy family life stands out in this work. This right is enshrined in Article 227 of the 1988 Federal Constitution and was implemented by Constitutional Amendment No. 65 of 2010, as transcribed below:

It is the duty of the family, society and the State to ensure that children, adolescents and young people, with absolute priority, have the right to life, health, food, education, leisure, professional training, culture, dignity, respect, freedom and family and community life, in addition to protecting them from all forms of neglect, discrimination, exploitation, violence, cruelty and oppression (BRAZIL, 2010).

Although parental alienation is not a recent phenomenon, it was only in 2010, with the enactment of Law No. 12,318, that Brazil created a specific legal framework to combat it, representing progress in the protection of the rights of children and adolescents. However, before this legislation, the Child and Adolescent Statute (ECA) and the Civil Code already addressed the issue, which demonstrates a constant evolution of the Brazilian legal system to deal with this issue. However, this problem has still generated challenges in the field of Family Law today, mainly regarding the determination of conduct and measures applied to this type of situation (BRASIL, 2010).

Law No. 12,318 of 2010 establishes guidelines for identifying and combating these practices, providing, among other measures, for psychological or biopsychosocial assessments to be carried out to assess suspected cases. According to this law, the complexity of diagnosing parental alienation requires an interdisciplinary approach, involving professionals from medicine, psychology, social assistance and law, in order to ensure a careful and fair analysis of the situations presented to the Judiciary (BRASIL, 2010). Since, in addition to all the complexity and many other factors, identification still comes up against the false memories of children and adolescents who are victims of parental alienation, which can lead this child to believe and report false events that never occurred.

According to researchers, some reasons can lead the child to have false ideas, hindering their own ability to discern, such as repeatedly hearing one parent speak badly of the other and the fear of displeasing, which can lead the child to feel the need to demonstrate that they do not like the alienated parent, so as not to displease the alienating parent, which contributes to the construction of these false memories, making the distinction between a true report and a false memory even more challenging (TRINDADE; MOLINARI, 2023 In: Dias, 2023).

Thus, it is clear that some of the challenges faced by multidisciplinary professionals involved in identifying and distinguishing these situations are clear. Seeking to understand the relationship between parental alienation and false memories, addressing the challenges faced by multidisciplinary professionals involved in this identification and assessment, and identifying which methods can be used to distinguish situations of real danger, such as sexual violence, from the presence of false memories resulting from the practice of alienation, are extremely complex activities that require properly trained teams.

In this sense, authors emphasize that it is extremely important to study the behavioral symptoms that may be associated with sexual abuse and false memories, as well as to discuss the challenges and limitations of forensic psychological evaluations in this context (TRINDADE; RIBEIRO; OLIVEIRA, 2023 In: DIAS, 2023). Furthermore, the need to understand the role of the Parental Relationship Assessment System (SARP) as a complementary tool in the analysis of cases of abuse and parental alienation is also reinforced (BAISCH; CATTANI, 2021).

Recently, Law No. 14,340 of 2022 amended Law No. 12,318 of 2010 by modifying procedures related to parental alienation, and amended Law No. 8,069 of 1990 (ECA) by establishing additional procedures for the suspension of parental authority. In this sense, the law introduced new procedures to be carried out by teams before the suspension of parental authority and changed the dynamics of judicial decisions on cases of parental alienation, regarding the application of urgent measures in the judicial sphere (BRASIL, 2022).

Therefore, it is understood that it is necessary to carry out a review of the preliminary decisions, since, with the applicability of the new measures, it has been noticed that, by prioritizing caution, the decisions of the Judiciary are not always in accordance with the letter of Law No. 12,318/2010, which requires that the evidence of parental alienation be sufficient for the adoption of urgent measures. In this sense, this study sought to provide an analysis of the stance of Brazilian courts, with an emphasis on the case law of the Court of Justice of Pernambuco (TJPE), in situations involving parental alienation, sexual abuse and the difficulties of reconciling the right to healthy family life with the protection of children and adolescents.

Thus, it can be seen that parental alienation involves not only legal aspects, but also psychological and social ones, requiring a multidisciplinary approach in its identification and, mainly, in its treatment, when it is confirmed. Therefore, this study also hopes to contribute to the improvement of expert practices and to the development of more effective strategies in the diagnosis of this practice, in search of the truth and, of course, in the protection of the rights of children and adolescents.

A viable alternative to ensure the continuity of parental bonds, as established by Law No. 11,698 of 2008, refers to shared custody. However, its implementation faces challenges, especially in contexts of high conflict between parents (RODRIGUES; ALVARENGA, 2014).

In this sense, another aspect of this study refers to the effectiveness of the measures adopted by the judicial system to deal with these complex and sensitive situations. This is because, in a context in which the coexistence and emotional bonds of children with both parents are essential for their development, it becomes necessary to adopt solutions that prioritize mediation and conciliation, instead of merely punitive measures that can aggravate family fragmentation (CASSOL; ROCHA; MACIEL, 2021).

The search for extrajudicial solutions and conflict resolution is reinforced by the advent of Constitutional Amendment No. 45/2004 and Resolution No. 125/2010 of the National Council of Justice (CNJ), which encourage alternative methods of dispute resolution, such as mediation and conciliation. These mechanisms aim to mitigate the negative effects of litigation, promoting more appropriate and sustainable agreements (BRASIL, 2004; CNJ, 2010).

This dissertation aims to analyze interdisciplinary practices in identifying the problem of parental alienation and alternative methods of conflict resolution, such as mediation and conciliation, in addition to shared custody, as a way of resolving, through more effective approaches, the resolution of these conflicts, maintaining bonds of affection. It is understood that interdisciplinarity, involving areas such as psychology, medicine, social work and law, can provide a more comprehensive and humanized understanding of family conflicts, promoting solutions that serve the best interests of the child.

This topic is relevant and stands out in the national scenario due to the serious emotional and psychological consequences for the children and adolescents involved, which can significantly impact their development. In view of this, this work aims to investigate the emotional consequences, the diagnosis and the possible solutions for the protection of the rights of children and adolescents within the scope of Family Law.

Assuming that the Judiciary and, in particular, the Court of Justice of Pernambuco still faces several obstacles in the identification and treatment of parental alienation, in addition to obstacles in the implementation of alternative methods of conflict resolution to deal with this problem, this research sought to answer the following questions: what interdisciplinary practices can help Judiciary employees in the identification of parental alienation? And what conflict resolution mechanisms can help in the resolution of disputes involving this act of moral abuse against children and adolescents?