Vai-se a relação, fica a parentalidade e a filiação : a guarda compartilhada à luz do melhor interesse da criança e do adolescente

Abstract

The purpose of this paper is to answer the question of whether shared custody is an expression of the best interests of children and adolescents, to the extent that it should be established as a general rule in Brazilian law, considering that the breakdown of the marital relationship does not influence the paternal and maternal-filial relationship. This study is justified because, given the entrenched practice of unilateral custody and the excessive dissociation between the institutes of custody and cohabitation, children, even under the shared custody of their ascendants, continue to be objects of dispute or contempt. Formally, they are under the responsibility of both parents; materially, under the effects of unilateral custody. So, under the scrutiny of the vast bibliography and legislation, in order to trace a path to the success of shared custody, the guiding principles of the relationship between parents and children were analyzed, as well as the elements that make up responsible parenting, the nuances of balanced coexistence, the compulsory nature of shared custody, as well as the practical obstacles to the implementation and enforcement of the sharing of experiences and routines established by the legislator, in order to finally situate the roles of each actor – parents, child(ren), lawyers, the judiciary and the legislature – in the realization of the co-management of their children's lives and the protection of the best interests of children and adolescents. As a result, whether decided by self-composition or heterocomposition, co-parenting and shared custody will only succeed and honor the best interests if adults become aware of their equally essential roles in their children's lives. And in order to achieve this awareness, numerous approaches and strategies can be adopted, which should come not only from the parents themselves (by supporting the other's parental role and not sabotaging the ex-partner's authority with the children), but also from the lawyers (by not stirring up the conflict, expanding it beyond the limits of reality, but by listening to and understanding the factual nuances that involve the legal elements), from the Judiciary (by ascertaining the feasibility of implementing and enforcing shared custody, as well as by establishing the duties of the father and mother and the periods of cohabitation - if necessary - always aiming for a balanced division of the child's time with both parents), and the Legislative Branch (by remedying legislative inconsistencies and omissions, imposing postprocedural verification of the effectiveness of shared custody, as well as expressly listing the penalties for non-compliance with the obligation of balanced family cohabitation).