Guarda compartilhada: a facultatividade em sua aplicação

Abstract

The constant social movements brought about changes in the role of parents in family relations, especially in the lives of children, modernising the concept of custody and anticipating methods that are in line with social interests. The enactment of Laws No. 11.698/08 and No. 13.058/14, which expressly provide for shared custody, made possible the search for a balance in the relationship between parents and their children in a scenario of a broken home without having the children suffer with the dissolution of the marital society. The shared custody should always comply with the constitutional and legal principles of the best interests of the child, the full protection of children and adolescents and the dignity of the human person and can also be considered a great breakthrough. In this sense, should the aforementioned principles are not observed, it is not beneficial or healthy for the child the choice for this type of custody, which goes in different direction to part of the doctrine understanding. The new Civil Procedure Code can greatly assist in the analysis on the implementation of shared custody in compliance with the well-being of the child, through mediation and conciliation hearings and multidisciplinary team to study the case. Thus, this study aims to analyse the possibility of considering shared custody as an alternative. In that scenario, some factors and conditions must be observed so that the judge can decide for the child shared custody arrangement.