Children’s Rights and Family Dynamics in Brazilian Law: A Comprehensive Overview
With ACE, it appears aimed at the welfare of the child. Thus, in a divorce, for example, the decision about the child does not give the reason for the split but focuses on the best interest of the child. This is the principle of best interests of the child.
The ACE differentiates children and adolescents based on differences in physical and mental maturity. So, a child is under 12 years of age, while a teenager is between 12 and 18 years old. As for penalties, protection measures are applied to children, while socio-educational measures are applied to adolescents. The above paragraph only refers to, for example, a 17-year-old who is serving time (a socio-educational measure) and needs to do it for another year (until they turn 18). In this case, even as an adult, they would continue under the care of the Juvenile Court for Children and Adolescents, and still fulfill the measure.
On guard, as it has physical possession of the child. In case of divorce, for example, one parent has custody of the child. If one parent gives up custody of the child, they have the right and duty to contact the child, besides being present in their life, since the child has the right to relate to both parents. This right is not fulfilled only when an official who has custody can not harm the child (e.g., alcoholic, drug addict, etc.).
As for adoption, in general, taking the case of a stepfather who creates the child as father, this needs the approval of the biological father for the adoption. This authorization is not necessary in case of abandonment or dismissal of family power. The adoption, in turn, is the transformation of a socio-affective relationship into a legal relationship of parenthood.
It is noteworthy that with the adoption, the child loses all ties with the biological parents, except for purposes of marriage, since the child cannot be married to the biological father or mother. Outside this bond, no other is maintained. Even on the birth certificate, there is nothing linking the child to biological parents, or anything that says the child was adopted, because of discrimination. There is, however, a child’s file with this information.
1. Right to Life and Protection of the Unborn
The SD from Article 226, enumerates the rights of the child. But is the child not a person? Should it not respond to the rights of all? Yes, but the protection of children goes further. Children and adolescents, as well as the elderly, are in a state of vulnerability, i.e., the smallest have no notion of rights and are also not aware of the duties that their parents carry. So, they are extremely dependent, considering they cannot afford to remain alone. So there is special legislation for these categories of people seeking its protection.
The family is responsible for ensuring the rights of all family members. The family is our first social circle. Thus, it is she who must first take care and ensure the rights of children and adolescents. Parents may respond in court if they do not do their duty. Second, the company and then the wider community. Finally, the Government, which must assist homeless children with the protection of family, and pursue public policies that guarantee these rights. Thus, ensuring the rights of children and adolescents is an obligation of all.
Note: Right to life includes not only life in the strict sense, but also dignity, supposedly. Moreover, the right to be born, or not have the pregnancy interrupted.
The legal personality in the CC that relates to being born alive, thus having the ability to exercise rights and be part of legal relations. It is noteworthy that the child may receive donations, inheritance, has the right to food gravitational, among others. For this, he must be born alive.
2. Family Fundamental to Society and Community
Right not to live in neglect, right to live and develop within the family. Assistance and support as the right of children and adolescents (as well as the elderly) and duty of the family.
In CC/16, the family was founded on marriage. The CF/88, however, approached the stable union – union public, continuous and with intent to form lasting family – as a family.
Remember that PARENT CHILD + = Parent Family, i.e., has only one parent, and this is not necessarily blood. So what is demonstrated is that no more is necessary to have the legal bond of marriage to be family.
Another change from the CF/88 is equality among the children. It no longer matters if the child is from assisted reproduction, adoption, pregnancy or biological, all children are legitimate and have the same rights and duties as the sixth paragraph of Art. 227
However, what is family?
Today we cannot reach a consensus on what a family is, given the change that conception has undergone. During the term of CC/16, the purpose of the family was to procreate, to have offspring. Marriage, for example, was unbreakable until 1977, with the Divorce Act. The culture has changed a lot since then.
Another change is that in CC/16 father was taken as a sign of marriage. With the CF88, the mother is given the position of the father. In addition, the child became the center of the family, and their interests should be taken into consideration. In this orbit change, the state also became more responsible, as
eighth paragraph of Article 226 of the Constitution.
The family cannot have its structure and disrupted peace in any way. Rather, the protection of the family outweighed the protection of its members. Today, the focus of protection is found in individuals over the protection of the family as a group.
he family as a group.