Guarda de filhos: aspectos controvertidos do exercício do poder familiar

AUTOR(ES)
DATA DE PUBLICAÇÃO

2004

RESUMO

The present study has the aim to analise the controversial aspects of the family power, specially, the parental dispute for the children s custody. Through the analyses of the social and legal evolution of the family, we demonstrate that the ancient juridical institute of the "paternal power" changed into "parental duty", or, as it is called by the paternal civilist legislator, family power: a complex whole of duties and rights filial-paternals which has the objective of the integral protection of the underage son and the incapable over eighteen. The structure of the actual family implies in coparentality in isonomic terms and it has the son as the subject of fundamental rights, based in constitutional principles. The titularity of the family power originates from the filiation and it is independent from the parental wedlocks. However, its exercise can suffer modifications due to the conjugal relationship between the parents, taking into consideration the principle of the best interest of the child. Analised the models of the exercise of the family power, we could verify that in the hypothesis of fragmented families, the paternal exercise of the family power can be accomplished in a unilateral or shared way and accorded by the parents in a friendly way, or, in case of conflict, submitted to a judicial determination. In the case of a parental litigation for the unilateral exercise of the family power, we analised the legal criterias used in the regulation of the family power exercise, specially, the children s custody. Our intention is to point out the controversial aspects of such delicate theme, proposing a new reflection towards the question, in order to look for possible and harmonizer solutions. The son in discussion is the great protagonist of our studies, a human being in development worthy of integral protection which comes from society and from the State, who must have warrented his fundamental right to cohabit harmoniously with his family

ASSUNTO(S)

guarda de menores direito poder familiar family power

ACESSO AO ARTIGO

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