QUEIROGA, M. M. P.; QUEIROGA, Milânia Mayra Pereira.
Résumé:
The society has gone through several changes over time, and consequently the
family has evolved in search for constant real truth in the family relationship, which is
the love. Then the law began to mold itself to reach and protect this new reality of the
family, which is guided in affectivity. Thus, the Federal Constitution of 1988 has
forbidden the distinction between the children, as well as the Civil Code of 2002
which ratified the constitutional principle of equality among children. Despite
legislative advances, the recent relationship between parent and affective child is not
yet fully supported by legislation. It is a kind of new membership, which is derived
from social advances within the Brazilian family, being considered as a relationship
based solely on love, where there is no blood tie. They are parents who choose to
create, educate, love and protect a person, who does not have blood connection. Are
families formed by free love, which have been recognized doctrinally and in several
decisions of our courts, they should therefore be supported by the legislator.
Although we know that the affective children are loved and considered children like
any others, before the Brazilian legislation, these people cannot exercise their rights,
since there is no legal provision for this. Thus, it is important to this study, as a
general objective, point to the need to create rules that protect the relationship
between parents and social-affective children, as well as its juridical implication, for
that the children have their rights recognized and receive state protection. For some
specifics objectives, can see concepts bound to the Family Law, more specifically
regarding membership and the sons’ state, till we get the analysis of the doctrinal and
jurisprudential opinions about the theme. Through deductive approach method
(which is based on the use of logic, from general premises to achieve a specific
result), we analyzed the doctrinal and jurisprudential understandings, highlighting the
legislative need to this membership, and the effects of their possible recognition
since the jurisprudence has been favorable, recognizing this socio-affective
relationship, equating them to other affiliations, missing only the legislator to fill this
regulatory gap with due legal text.