CIVIL LIABILITY FOR AFFECTIVE ABANDONMENT IN BRAZILIAN LAW: DOCTRINE, JURISPRUDENCE AND CHALLENGES

• DOI: > https://doi.org/10.22533/at.ed.2164242426116

• Palavras-chave: affective abandonment, accountability for affective abandonment, judicialization of affective abandonment.

• Keywords: affective abandonment, accountability for affective abandonment, judicialization of affective abandonment.

• Abstract:

  Civil liability for affective abandonment refers to the possibility of parents being held legally responsible for failing to provide adequate emotional, affective and psychological care for their children. The concept is based on the understanding that parenting goes beyond the obligation to provide material support, and also encompasses the duty of care, affection and emotional presence. When these duties are neglected, this can lead to affective abandonment, which can cause moral damage to the affected child. Affective abandonment can be dealt with by Brazilian legislation in the context of civil liability, in the light of Article 186 of the Civil Code, which provides for the obligation to make reparation for damage, whenever there is an action or omission that causes injury to the rights of others. The basis of this liability is the violation of the duty of care, which is part of family power, established in Article 1.634 of the Civil Code. In addition, Article 227 of the 1988 Federal Constitution reinforces the right of children and adolescents to family life and full protection. Doctrine and jurisprudence have evolved in recognizing affective abandonment as a form of damage, although there are differences between the courts on the viability of convictions for this cause. Some believe that love and affection cannot be judicially demanded, while others argue that emotional abandonment generates concrete damage that deserves reparation. The Superior Court of Justice (STJ) has important precedents on the subject, consolidating the idea that the unjustified absence of affection and support can lead to compensation, as long as the causal link between the abandonment and the psychological damage suffered is proven. Thus, civil liability for affective abandonment is an instrument to guarantee the realization of the rights of children and adolescents, based on the principle of human dignity. The research will adopt the hypothetical-deductive method and a qualitative-quantitative approach. It will be based on a comprehensive bibliographical review, exploring available sources on the subject.