Affection and cohabitation or shared decisions? The state of the art of shared custody in Brazil

Abstract

Based on the principle of the best interests of the child and the need to change the paradigm of the idea naturalized over time that the mother has the duty of care, and in the search to consolidate the understanding of the importance of sharing not only the decisions related to children, but also to ensure the effective coexistence with both parents, under penalty of emptying the treated institute, the objective of this article is to investigate the treatment of shared custody in Brazil. Based on preliminary research, the hypothesis is that shared custody is being understood only as an institution of shared decisions between parents regarding the various aspects related to their children. To this end, using the deductive method, a doctrinal and jurisprudential survey was conducted, using the decisions of the Superior Court of Justice on shared custody as a source. After the qualitative treatment of the data collected, it was possible to point out and critically analyze controversial aspects involving the issue of the possibility of withdrawing from sharing in the event of belligerence between the parents, as well as the discussion about the need or not for joint physical custody, in addition to confirming the hypothesis raised, which highlights the urgency of the discussion on the subject.