Da proteção aos vínculos familiares: uma análise sobre a possibilidade de guarda compartilhada quando os ex-cônjuges residem em países diferentes

Abstract

Regarding children and adolescents, the preservation of parenting ties is so important that the Brazilian legal system not only recognizes the right to family life constitutionally in art. 227 of the Federal Constitution and infraconstitutionally in Art. 19 of Law 8069, but it also establishes as a rule the institute of joint custody, see art. 158, § 2 of the Civil Code. Thus, usually the judiciary decides, in the case of ordinary cases in which the litigant ex-spouses usually reside in nearby locations, by adopting joint custody, aiming to preserve the parenting ties, thus serving the best interests of the child. However, given the circumstances in which the parents are residing in different countries, it is presumable that both parents will claim the sole custody of the children, and it is customarily decided by the judiciary to adopt such hypothesis. Thus, this research aims to investigate the feasibility of using the joint custody institute in the context of the child's or adolescent's parents residing in different countries. For this, the dialectical method was used. As for research techniques, bibliographic and documentary research were used. From the research carried out, it was possible to conclude that the use of joint custody in these scenarios is fully admissible, and there is already an understanding in higher instances in this regard. The preservation of parenting ties in most cases will, in fact, be the best decision to be taken, without departing from the possibility that the child's parents live in different countries.