SHARED CUSTODY IN CONFLICT RELATIONSHIPS: AN INSTRUMENT TO INHIBIT PARENTAL ALIENATION AND PROTECT THE BEST INTERESTS OF THE MINOR

Abstract

During the human development process, from gestation to adulthood, it is necessary to guarantee support that ensures their full physical, psychological and social development. This initial support must be offered by their parents, together with the family, who will be responsible for promoting and ensuring their assistance, health and protection (LIMA, 2022). In addition to the family, the State and society must ensure that all rights established by the national legal system and the international agreements and treaties signed by Brazil are exercised. Thus, the State must adopt effective public policies that aim at the education, health and well-being of these individuals, while the Judiciary must act promptly in cases of violation of these rights (BRASIL, 1988). The Brazilian Federal Constitution adopts the fundamental right to family life, and on August 26, 2010, legislators instituted Law No. 12,218/2010 with the aim of repressing parental alienation, which can be defined as interference in the psychological development of a child or adolescent promoted or induced by one of the parents, or by those who have their authority, custody or supervision so that they repudiate the parent or cause harm to the establishment or maintenance of bonds with the latter (BRASIL, 2010).

However, there are some situations in which the family ends up putting the child or adolescent at risk, such as parental alienation, defined by Law No. 12,318/2010 as interference in the psychological development of the child or adolescent promoted or induced by one of the parents, grandparents or those who have the child or adolescent under their authority, custody or supervision so that they repudiate the parent or cause harm to the establishment or maintenance of bonds with the parent (SANTI, 2019; BRASIL, 2010). This practice ends up violating the fundamental rights inherent to the child and adolescent, often requiring the intervention of the Judiciary to ensure that the principle of the best interests of the child is implemented and that the child has bonds and a harmonious family life (DIAS, 2021). It is necessary to weigh up principles, where the best interests of the child and adolescent must prevail (LIMA, 2022). In the legal system, parental alienation refers to a family situation that generates mistreatment and abuse of children and adolescents, causing serious consequences for their development and, since it is not possible to find a solution by one's own means, requiring State intervention in cases that exceed ethical and social limits, and are not necessarily associated with a pathology that justifies them (SOUZA, 2019).

Normally, these cases occur during the end of the marital union, with problems arising related to disputes over custody of children and/or adolescents. It is at this stage that the first manifestations of defamation against one of the parents usually begin, promoted or induced by the other parent or whoever has custody of the child and/or adolescent (DIAS, 2017). These behaviors can evolve into situations of parental alienation, where one of the parents, consciously or unconsciously, tries to distance the infant from the other parent's company, negatively influencing the child's perception of the alienated father or mother (BRASIL, 2010). Parental alienation, in addition to causing significant emotional damage to the child, can further complicate the custody process, requiring judicial intervention to ensure the best interests of the child (OLIVEIRA, 2018).

In view of these conflicts, the Brazilian legal system, based on the basic principle that governs Family Law, applies the institution of custody with the aim of protecting the interests and well-being of the children and adolescents involved (BRASIL, 1990). Custody can be unilateral, when assigned to only one of the parents, or shared, when both parents share the responsibilities and rights over the children, as provided for in the Brazilian Civil Code and the Statute of the Child and Adolescent (ECA) (BRASIL, 2002; BRASIL, 1990).

The main objective of applying the custody system in Brazil is to ensure that decisions made within the scope of Family Law are always guided by the best interests of the child, promoting their integral development and the maintenance of safe and healthy emotional bonds with both parents and their family members (SOUZA, 2019). Shared custody has proven to be an important tool in promoting the well-being of children and adolescents, especially in contexts of separation or divorce of parents. In cases where there are accentuated conflicts between parents, this type of custody can act to reduce or even inhibit parental alienation, ensuring the best interests of the child, as it promotes an “indirect” union of responsibilities, rights and duties between the parents themselves (LEÃES, 2022; RESMINI; FRIZZO, 2018).

With this type of custody, it is possible to establish duties for both parents, with joint accountability and the exercise of rights and duties of the father and mother who do not live under the same roof, without fully “favoring parents”, but rather the child himself, in addition to making it possible for the child to continue living together, prioritizing full development (BRASIL, 2002; LEÃES, 2022). According to Silva and Fogiatto (2017), a child who lives with both parents makes it difficult for alienating acts and distancing between the father and/or mother to occur, as this experience provides the child with greater security in their feelings, reducing the possibility of suffering negative influences and being manipulated. In view of this, this work aims to carry out a bibliographic review to analyze the impact of applying shared custody in cases of conflicting relationships as an instrument to inhibit parental alienation, aiming to understand how this contributes to promoting the best interests of the child.