Abandono afetivo do menor: um estudo sobre a configuração da responsabilidade civil parental pelo descumprimento do dever constitucional de convivência e as inovações trazidas pelo Código de Processo Civil de 2015

Abstract

This work aims to analyze the parental liability in cases of breach the constitutional duty of cohabitation, checking the configuration of the child’s affective abandonment and the consequent duty compensation by the absent parent. Starting from the instrumental notion of family and using the civil-constitutional methodology of studying law, is intended to demonstrate that the principles covered by the 1988 Federal Constitution influences all the legal system, even the Families law. In this sense, it is highlighted the affection principle, that although implicit, is present on many articles of the Federal Constitution of 1988, and the family solidarity, foreseen on article 227, in which are listed the duties of the family power. In view of the dissenting position in jurisprudence and doctrine about the recognition of compensable moral damages in cases of emotional abandonment, this study shows relevant, striving to demonstrate that the best position recognizes that the right of paternal-filial coexistence of children, constitutes, on the other hand, parental power and duty. Thus, their transgression should be sanctioned by the civil liability of the person that didn’t observe an imaterial child’s right. Furthermore, considering the possibility to resume or establish family ties, this research turns also to study mediation as an alternative method able to be used in emotional abandonment cases.