A aplicação sem critérios da guarda compartilhada em detrimento do melhor interesse do menor

Abstract

Child custody is an institute that consists of the responsibility of one or both of the former spouses to care for the best interests of the child in order to guide their lives, making choices and making decisions from day to day, thus materializing the power in the minor's routine. One of the custody modalities is shared custody, which has gained momentum in recent years because it is a model in which both parents exert equal power to make decisions regarding the child. Prior to Law 13.058 / 2014, shared custody was an option to give preference, but if it was not understood as appropriate to the case, its application was not seen as an obligation. However, it was observed that the dissolution effects of the affective relationship between the parents also affected the smaller, often causing the parental alienation, which brings irreversible damages to the child. In this sense, in order to reduce the problem, shared custody was established as a rule. At the time when the aforementioned law included paragraph 2 to article 1584 of the Civil Code, this type of custody became the general rule of the Brazilian legal system, only ceasing to apply if one of the parents declares that they do not have a desire to exercise custody of child or when it is possible to observe some impediment that disagrees with one of the parents to exercise the family power. Thus, it is possible to observe that the application of the shared guard as a rule does not provide criteria for its application, making its transition from theory to practice become a little more complicated, since each family works in a different way , and there is no perfect formula that applies to all.