Guarda unilateral paterna: um estudo sobre como a legislação brasileira disciplina esse instituto jurídico

Abstract

The present work had as motivating fact the perception that in very rare cases the Brazilian justice gives the parent of a child or adolescent the right to exercise his custody unilaterally. However, even though this is a modality of custody that is still little present in our reality, it has been gaining space as an alternative to shared custody, and with this, several questions about it arise. Thus, this study intends to approach the theme by bringing a retrospective of Brazilian legislation regarding this legal institute, as well as analyzing how civilist doctrine addresses the issue, involving family law and the preservation of the best interests of children and adolescents. In this sense, it is inferred that until the year 2014, the rule that custody should be unilateral prevailed, with shared custody being an option for the couple, however, Law No. 11,698 / 2008 took the first step for this reality to be altered, establishing the possibility of shared custody, making it later, as from Law 13.508 / 2014, to be adopted as preferable given the condition of separation of the parents of a child, being, however, unilateral custody, a possibility when one of the parents does not want or does not have the necessary conditions to exercise custody. On the other hand, despite the equality of conditions given to men and women, fathers and mothers arising from the Federal Constitution of 1988, in practice, what is observed is a great disparity when the issue involves the granting of custody unilaterally in favor of the parent, since even with equal rights, the mother still has the preference in the exercise of unilateral custody, and when the custody is shared, the reference home of the child or adolescent is, almost always, the maternal residence. Thus, the objective of this work is to clarify what this type of paternal unilateral custody is, in what way and in what situations it can be applied, and, still, what are the requirements for its concession and how will the family organization take place from that moment on, using the deductive for exploratory purposes as a research method, using techniques such as bibliographic research and observation.