A omissão da identidade paterna como causa de descumprimento de deveres: responsabilidade civil à luz da teoria da perda de uma chance

Abstract

This article is dedicated to envision a way to compensate the child in the case of maternal omission, which impedes the opportunity of a paternal-filial relationship, being a theme of civil liability in domestic relations, especially in the relationship between parents and children. For this matter, the hypothetical-deductive method was used, since it started at the formulation of a problem, which is the definition of the reasons and fundaments for the reparation to the child in face of the omission of paternal identity, in order to achieve the solution to this question with hypothesis tests. As a result, the civil reparation is admitted by adducting the arguments of the theory of the loss of a chance, the equivalence of the omission to parental alienation and to affective abandonment, damage to the right to parentage and to family and community living and the right to knowing one’s biological origin. It is understood that the absence of a paternal figure caused by the mother results in damage to the right of conviviality, as well as the right to filiation and, most importantly, the loss of a chance to have contact and intimacy with the father.