Child custody is one of the most hotly contested issues for divorcing couples. But thanks to a new Brazilian law, the issue will likely be decided long before husbands and wives ever get to court.
On November 26, 2014, the Senate approved an amendment to Articles 1,583, 1,584, 1,585 and 1,634 of the Civil Code, making joint custody the default arrangement in most cases. Less than a month later, on December 23, President Dilma Rousseff signed the amendment into law, effective immediately.
The new law substantially changes paragraph 2 of Article 1,584 by making joint custody the new standard for mothers and fathers who are divorcing. Before the amendment, joint custody was only one of many options available to a judge and, according to many, an option infrequently selected by the court. However, now joint custody should be awarded whenever there is no agreement between the parties, assuming both parents are capable of exercising “parental authority.”
Joint custody would similarly not be applied if either the mother or the father declares that he or she does not want custody. In that instance, the parent could waive his or her rights altogether and ask that custody be given to the other party instead.
The new law also establishes the duties of both parents once the divorce is finalized. In other words, it spells out what each parent must do whenever the child is in their care. There is also a change that affects paragraph 3 of Article 1,584 by providing that there must be a “balanced division” of the time a child spends with each parent. This doesn’t necessarily mean equal time with each parent, but should nonetheless be as close to it as reasonably possible.
With this new “default” standard for joint custody, we can expect fewer lengthy custody battles clogging the Brazilian family courts.
