Guarda compartilhada compulsória: entre o princípio do melhor interesse da criança e a consagração do poder familiar.

Abstract

The marital breakdown gives rise to legal consequences, and among them, is the regulation of child custody. In this sense, the objective of this study is to analyze the legal criteria for the application of joint custody Institute in the Brazilian legal system, especially compulsoriedade after the issuance of Law No. 13,058 of 2014. Therefore, we analyzed the historical context that guides modern concept of family as well as the consequences of replacing the parental naming power to family power. Traced a debate about the interpretation of the rules governing the institute to assess whether the legislator's intention, embodied in the recent amendments to the legal provisions, not affront the doctrine of the best interests of the child / adolescent supported by the Federal Constitution and Law Nº. 8069 / 1990. It was also unable protection of the institutes, emphasizing the civilists standards dealing with the subject The guarantee of family life associated with the principle of responsible parenthood guide decisions in Brazilian courts and justify the doctrinal positions that accept or repel the compulsory application of shared custody in the face of negative agreement between the parents. Therefore, we used the procedure of historical and comparative methods, analyzed the evolution of the protection of children in Brazilian legislation and confronted to foreign law jurisprudence with the principles governing the current family law. We used the direct documentary research, through both bibliographic research through books, magazines and electronic items, as case law, judged by the higher courts and the State Courts of Justice.