The joint custody has become the primary form of parental coexistence in Brazil since the amendment of the Civil Code by Law No. 13,058/2014.
This shift emphasized the significance of both parents being actively involved in raising children, even post-separation.
Understanding the legal consequences and forensic procedures associated with joint custody is crucial for attorneys to safeguard the child’s welfare.
This article will examine the idea, legal foundations, and real-life instances of shared guardianship, providing a comprehensive understanding of its operation and relevance in everyday legal scenarios.
What does a shared guard mean?
The shared custody is a form of parental arrangement where both parents share the significant duties and choices regarding the child’s life.
Decisions concerning education, health, housing, and other important aspects should be made collectively in this model.
Shared custody does not always mean that the time spent with each parent is the same. The main goal is to prioritize the child’s welfare and enable both parents to be involved in raising their child, even after a divorce.
Legal foundation for joint custody (Articles 1.583 and 1.584 of the Civil Code)
The joint custody is governed by Articles 1.583 and 1.584 of the Civil Code.
These devices give precedence to the shared parenting model in situations of separation or divorce, as long as both parents can fulfill their parental responsibilities.
Shared custody is defined in Article 1.583 as requiring a balanced coexistence that prioritizes the child’s best interests.
Article 1.584 states that joint custody will be the usual arrangement, unless one parent is deemed unsuitable.
The STJ has established legal principles on the matter, highlighting that joint custody aims to maintain the parent-child relationship and prioritize the child’s well-being.
Here is a sample of legal precedent:
Reevaluation of the need, possibility, and minor guardianship within internal agreements involving special resources in family law. The elective approach is deemed inadequate. The decision regarding the revocation of authority lies with the original court. STJ Summation No. 7.
After the enactment of Law n. 13,058/2014, the predominant rule in the legal system of the country shifted to shared custody, allowing both parents to have active involvement in raising their children even if they disagree. Sole custody is only granted if one parent explicitly rejects custody or if the court determines that one parent is unfit to exercise parental authority. Shared custody can be revoked in exceptional circumstances, prioritizing the best interests of the child, as stated in Article 1584, § 2 of the Civil Code.
How does the joint guard operate?
The joint security guard operates through teamwork, necessitating ongoing communication among the parents. Key elements include:
- Both parents share the responsibility of making decisions regarding their child’s life, including education, healthcare, and extracurricular activities.
- The child may have a primary residence, but it is important to ensure significant coexistence with the other parent for balanced living.
- To prevent conflicts, parents can create a thorough plan outlining schedules and rules for living together.
- The model can be adjusted to suit the child’s needs and the parents’ schedule, as long as the child’s well-being is maintained.
When should you avoid using a shared guard?
There are instances where the shared guard may not be utilized, for example:
- Cases of violence or abuse against the other parent or child energize the model of domestic violence.
- One parent’s inability: circumstances that hinder the capacity to wield parental authority, like substance abuse or emotional fragility.
- High level of conflict: when there is no communication or severe conflict between the parents.
The judge may decide on a different form of custody, like sole custody, always considering the child’s best interests.
Examples of practical applications in the Guard Shared
Practical examples demonstrating the application of the shared guard in various scenarios are provided below.
Parents agree to share decision-making regarding their child’s education after separation. They decide that the child will stay with the mother during the week and alternate weekends with both parents.
In a legal proceeding, the judge assigns shared custody responsibilities, with the father involved in medical consultations and school meetings, and the mother handling extracurricular activities.
Parents turn to mediation to create a suitable coexistence plan when faced with ongoing conflicts, focusing on the child’s best interests and well-being.
Practical advice for attorneys serving in the National Guard.
The lawyer’s expertise is crucial in ensuring the correct application of shared custody, with a focus on the child’s best interests.
Here are a few useful recommendations:
Explain the idea of a shared guardian.
Many clients mistakenly equate shared custody with an equal split of time for co-parenting. Clarify this distinction.
- The shared guard involves both parents jointly sharing responsibility for decisions regarding the child’s life.
- The duration of living together may differ, but the main concern is the child’s welfare rather than a strict calculation.
Legal foundation: Civil Code (Article 1.583) and Child and Adolescent Statute (Article 4).
Create a comprehensive plan for living together
- – Guidelines for communicating with the child (such as links and video calls).
- Visiting hours and living together.
- Holidays, vacations, and special occasions.
- Guidelines for communicating with the child through links and video calls.
- A thorough plan minimizes disagreements and eases court endorsement.
- Visitation hours and living together.
- Holidays, vacations, and special occasions.
- Guidelines for communicating with the child through links and video calls.
Promote communication between parents
- Emphasize the significance of collaboration for the shared guard’s success.
- Proposes reconciliatory approaches like family mediation and coparenting counseling.
- Family mediation services.
- Coparenting therapy.
- Mediation for family issues.
- Coparenting therapy.
The child’s well-being should always be the main focus, even when the parents are no longer together, they should still work together harmoniously for the child’s benefit.
Utilize technology to enhance case management.
Digital tools have the potential to enhance your efficiency.
- Artificial intelligence software like Legal AI can be utilized by lawyers to efficiently generate legal documents, enabling them to save time and focus on case strategy.
- Organize your schedule effectively using tools such as Trello or Google Calendar.
- Suggest apps such as Our Family Wizard to improve communication and organization among parents.
Carefully assess unusual cases.
- The joint custody arrangement may not be sufficient in cases of domestic violence or abuse.
- Inform customers about the option of self-defense and recommend precautionary measures if needed.
- Protect the minor and vulnerable son-in-law by strengthening the implementation of the Maria da Penha Law (Law No. 11.340/2006).
Stay updated regularly on legal decisions.
- Recent court rulings regarding shared custody, such as parental alienation cases, and the concept of coexistence in remote work settings or urban transitions.
- Cases of parental alienation.
- Definition of living together in situations of working remotely or urban transformations.
- Base your petitions and arguments on audiences by using these examples as references.
- Cases of parental alienation.
- Definition of coexistence in the context of remote work or urban transformations.
Take into account the child’s psychological factors.
- Collaborate with psychologists and social workers to assess the effects of joint custody on the child.
- Emphasize the significance of a steady and thriving environment, even when living in different households.
Be open and clear regarding customer expectations.
- Describe the practical opportunities and constraints of the shared custody arrangement.
- The judge always focuses on the child’s best interests, even if it goes against the parents’ preferences.
The significance of joint custody in Family Law
The joint custody arrangement symbolizes progress in Family Law by encouraging parental responsibility and prioritizing the child’s welfare.
Its execution necessitates communication, organization, and a child-focused methodology.
Understanding the legal intricacies and procedures of joint custody is crucial for lawyers to deliver high-quality service and uphold the rights of everyone involved.
Check out our article about crafting Food Quotes.